environmental protection agency 40 cfr …page 2 of 519 codified by the non-hazardous secondary...

This document is scheduled to be published in theFederal Register on 02/07/2013 and available online at http://federalregister.gov/a/2012-31632, and on FDsys.gov

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 241

[EPA–HQ–OAR–2003-0119 and EPA-HQ-RCRA 2008-0329; FRL-9764-1]

RIN 2060-AR15 and 2050-AG44

Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste AGENCY: Environmental Protection Agency.

ACTION: Final rule; notice of final action on reconsideration.

SUMMARY: This action sets forth the EPA’s final decision on the

issues for which it granted reconsideration in December 2011,

which pertain to certain aspects of the March 21, 2011, final

rule titled “Standards of Performance for New Stationary Sources

and Emissions Guidelines for Existing Sources: Commercial and

Industrial Solid Waste Incineration Units” (CISWI rule). This

action also includes our final decision to deny the requests for

reconsideration with respect to all issues raised in the

petitions for reconsideration of the final commercial and

industrial solid waste incineration rule for which we did not

grant reconsideration. Among other things, this final action

establishes effective dates for the standards and makes

technical corrections to the final rule to clarify definitions,

references, applicability and compliance issues. In addition,

the EPA is issuing final amendments to the regulations that were

http://federalregister.gov/a/2012-31632

http://federalregister.gov/a/2012-31632.pdf

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codified by the Non-Hazardous Secondary Materials rule (NHSM

rule). Originally promulgated on March 21, 2011, the non-

hazardous secondary materials rule provides the standards and

procedures for identifying whether non-hazardous secondary

materials are solid waste under the Resource Conservation and

Recovery Act when used as fuels or ingredients in combustion

units. The purpose of these amendments is to clarify several

provisions in order to implement the non-hazardous secondary

materials rule as the agency originally intended.

DATES: The May 18, 2011 (76 FR 28662), delay of the effective

date amending subparts CCCC and DDDD at 76 FR 15703 (March 21,

2011) is lifted February 7, 2013. The amendments in this rule

to 40 CFR part 60, subpart DDDD, are effective February 7, 2013,

and to 40 CFR part 60, subpart CCCC, are effective August 7,

2013. The amendments in this rule to 40 CFR part 241 are

effective April 8, 2013. The incorporation by reference of

certain publications listed in that rule is effective February

7, 2013.

ADDRESSES: The EPA established a single docket under Docket ID

Number EPA-HQ-OAR-2003-0119 for this action on the commercial

and industrial solid waste incineration rule. The EPA also

established a single docket under Docket ID Number EPA-HQ-RCRA-

2008-0329 for this action on the non-hazardous secondary

materials rule. All documents in the docket are listed in the

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http://www.regulations.gov index. Although listed in the index,

some information is not publicly available, e.g., confidential

business information or other information whose disclosure is

restricted by statute. Certain other material, such as

copyrighted material, will be publicly available only in hard

copy. Publicly available docket materials are available either

electronically in http://www.regulations.gov or in hard copy at

the EPA Docket Center, EPA West Building, Room 3334, 1301

Constitution Ave., NW, Washington, DC. The Public Reading Room

is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,

excluding legal holidays. The telephone number for the Public

Reading Room is (202) 566-1744 and the telephone number for the

Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further information

regarding the commercial and industrial solid waste incineration

reconsideration and final amendments, contact Ms. Toni Jones,

Fuels and Incineration Group, Sector Policies and Programs

Division (E143–05), Environmental Protection Agency, Research

Triangle Park, North Carolina 27711; telephone number: (919)

541–0316; fax number: (919) 541–3470; email address:

[email protected], or Ms. Amy Hambrick, Fuels and Incineration

Group, Sector Policies and Programs Division (E143–05),

Environmental Protection Agency, Research Triangle Park, North

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Carolina 27711; telephone number: (919) 541–0964; fax number:

(919) 541–3470; email address: [email protected].

For further information regarding the Non-Hazardous

Secondary Materials final rule, contact Mr. George Faison,

Program Implementation and Information Division, Office of

Resource Conservation and Recovery, 5303P, Environmental

Protection Agency, Ariel Rios Building, 1200 Pennsylvania

Avenue, NW, Washington, DC 20460-0002; telephone number: 703-

305-7652; fax number: 703-308-0509; email address:

[email protected].

I. Organization of this Document

The following outline is provided to aid in locating

information in this preamble.

I. Organization of this Document A. Supplementary Information B. Does this action apply to me? C. Where can I get a copy of this document? D. Judicial Review E. Executive Summary II. CISWI Reconsideration and Final Rule A. Background Information 1. What is the history of the CISWI standards? 2. How is the definition of solid waste addressed in the final

CISWI rule? 3. What is the relationship between this rule and other

combustion rules? 4. What is the response to the vacatur of effective dates? B. Summary of This Final Rule 1. Subcategories of Affected Units and Emission Standards 2. Fuel Switching Provisions 3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil

Treatment Units, Laboratory Analysis Units and Space Heaters 4. Affirmative Defense for Malfunction Events 5. Oxygen Correction Requirements and CO Monitoring Requirements

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6. Full-load Stack Test Requirement for CO Coupled With

Continuous O2 Monitoring

7. Non-detect Methodology Using Three Times the Detection Level 8. Definitions for Foundry Sand Thermal Reclamation Unit and

Chemical Recovery Unit 9. Definition of Contained Gaseous Material 10. Parametric Monitoring Provisions for Additional Control

Device Types 11. Particulate Matter Continuous Monitoring Provisions for

Large ERUs and Waste-burning Kilns 12. Revised Definition of Waste-burning Kiln 13. Revised Definition of Solid Waste 14. Compliance Dates 15. Revised New Source Performance Standards C. Summary of Significant Changes Since Proposal 1. Revision of the Subcategories 2. Revisions to the Monitoring Requirements 3. Oxygen Monitoring Requirements 4. Removal of the Definition of Homogeneous Waste 5. Non-detect Methodology Using Three Times the Detection Level 6. Parametric Monitoring for Additional Control Device Types 7. Particulate Matter Continuous Monitoring Provisions for Large

ERUs and Waste-burning Kilns 8. Compliance Dates 9. Definition of Waste-burning Kiln 10. Exemption for Other Solid Waste Incineration (OSWI) Units D. Technical Corrections and Clarifications E. Major Public Comments and Responses F. What other actions are we taking? G. What are the impacts associated with the amendments? 1. What are the primary air impacts? 2. What are the water and solid waste impacts? 3. What are the energy impacts? 4. What are the secondary air impacts? 5. What are the cost and economic impacts? 6. What are the benefits? III. NHSM Final Revisions A. Statutory Authority B. NHSM Rule History C. Introduction – Summary of Regulations Being Finalized 1. Revised Definitions a. Clean Cellulosic Biomass b. Contaminants c. Established Tire Collection Programs d. Resinated Wood 2. Contaminant Legitimacy Criterion for NHSM Used as Fuels

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3. Categorical Non-Waste Determinations for Specific NHSM Used

as Fuels a. Scrap Tires b. Resinated Wood c. Coal Refuse d. Pulp and Paper Sludge 4. Rulemaking Petition Process for Other Categorical Non-Waste

Determinations (40 CFR 241.4(b)) 5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination

Petition Process 6. Revised Introductory Text for 40 CFR 241.3(a) D. Comments on the Proposed Rule and Rationale for Final

Decisions 1. Revised Definitions a. Clean Cellulosic Biomass b. Contaminants c. Established Tire Collection Programs 2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels a. General Comments on the Revised Contaminant Legitimacy

Criterion b. Grouping of Contaminants c. Meaning of Designed to Burn d. Contaminant Comparisons Allowed 3. Categorical Non-Waste Determinations for Specific NHSM Used

as Fuels a. Scrap Tires b. Resinated Wood 4. Rulemaking Petition Process for Other Categorical Non-Waste

Determinations (40 CFR 241.4(b)) 5. Materials for Which Additional Information was Requested a. Pulp and Paper Sludge b. Coal Refuse c. Manure d. Other Materials for Which Additional Information was Not Requested 6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination

Petition Process 7. Revised Introductory Text for 40 CFR 241.3(a) E. Cost and Benefits of the Final Rule IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and

Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism

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F. Executive Order 13175: Consultation and Coordination with

Indian Tribal Governments G. Executive Order 13045: Protection of Children from

Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and Low-Income Populations

K. Congressional Review Act

A. SUPPLEMENTARY INFORMATION:

Acronyms and Abbreviations. The following acronyms and

abbreviations are used in this document.

ACI activated carbon injection AF&PA American Forest & Paper Association ANPRM Advanced Notice of Proposed Rulemaking ANSI American National Standards Institute APA Administrative Procedure Act ARIPPA Anthracite Region Independent Power Producers Association ASME American Society of Mechanical Engineers AST activated sludge treatment ASTM American Society for Testing and Materials ATCM Air Toxic Control Measure Btu British thermal unit CAA Clean Air Act CARB California Air Resources Board CBI Confidential Business Information CCA chromated copper arsenate Cd cadmium C&D construction & demolition CDX Central Data Exchange CFB circulating fluidized bed CEMS continuous emissions monitoring systems CERCLA Comprehensive Environmental Response, Compensation,

and Liability Act CFR Code of Federal Regulations

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CISWI Commercial and Industrial Solid Waste Incineration CO carbon monoxide CO2 carbon dioxide

Catalyst carbon monoxide oxidation catalyst Cl2 chlorine gas

CPMS continuous parametric monitoring system CWA Clean Water Act D/F dioxin/furan dscm dry standard cubic meter DSW Definition of Solid Waste EG emission guidelines EJ Environmental Justice EOM extractable organic matter EPA U.S. Environmental Protection Agency ERT Electronic Reporting Tool ERU energy recovery unit ESP electrostatic precipitator FF fabric filters FR Federal Register HAP hazardous air pollutants HCl hydrogen chloride HF hydrogen fluoride Hg mercury HMI hospital, medical and infectious HMIWI Hospital, Medical and Infectious Waste Incineration ICR Information Collection Request Lb pound LML lowest measured level Mg milligram Mn manganese MACT maximum achievable control technology MDL method detection level mg/dscm milligrams per dry standard cubic meter mmBtu/hr million British thermal units per hour MSW Municipal Solid Waste MW megawatts MWC Municipal Waste Combustor NAAQS National Ambient Air Quality Standards NAICS North American Industrial Classification System NCASI National Council on Air and Stream Improvement

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ND nondetect NESHAP National Emission Standards for Hazardous Air

Pollutants ng/dscm nanograms per dry standard cubic meter NHSM non-hazardous secondary material(s) NIST National Institute of Standards and Technology NOx nitrogen oxides

NSPS New Source Performance Standards NTTAA National Technology Transfer and Advancement Act OAQPS Office of Air Quality Planning and Standards OMB Office of Management and Budget OSWI Other Solid Waste Incineration OSWER Office of Solid Waste and Emergency Response O2 Oxygen

PAH polycyclic aromatic hydrocarbons Pb lead PCBs polychlorinated biphenyls PCDD polychlorinated dibenzodioxins PCDF polychlorinated dibenzofurans PIC product of incomplete combustion PM particulate matter POM polycyclic organic matter ppm parts per million ppmv parts per million by volume ppmvd parts per million by dry volume PQL practical quantitation limit PRA Paper Reduction Act PS Performance Specification lb/MMBtu pound per million British thermal units RCRA Resource Conservation and Recovery Act RDL reported detection level RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RIN Regulatory Information Number RTO regenerative thermal oxidizer RTR residual risk and technology review SBA Small Business Administration SBREFA Small Business Regulatory Enforcement Fairness Act SISNOSE Significant Economic Impact on a Substantial Number

of Small Entities SMCRA Surface Mining Control and Reclamation Act of 1977

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SNCR selective noncatalytic reduction SO2 sulfur dioxide

SSI Sewage Sludge Incineration SSM startup, shutdown and malfunction SVOC Semi-Volatile Organic Compound SWDA Solid Waste Disposal Act TBtu tera British thermal unit TEOM Tapered Element Oscillating Microbalance TEQ Toxic Equivalency The Court U.S. Court of Appeals for the District of Columbia

Circuit TMB Total Mass Basis TOX Total Organic Halogens tpy tons per year TSM Total Selected Metal TTN Technology Transfer Network UCL upper confidence limit ug/dscm micrograms per dry standard cubic meter UMRA Unfunded Mandates Reform Act UL upper limit UPL upper prediction limit U.S.C. United States Code USGS United States Geological Survey VCS Voluntary Consensus Standards VOC volatile organic compound WWW Worldwide Web B. Does this action apply to me?

Categories and entities potentially affected by this action

are those that operate CISWI units and those that generate

potentially affected NHSMs. The NSPS and EG, hereinafter

referred to as “standards,” for CISWI affect the following

categories of sources:

Category NAICS1

Code Examples of Potentially

Regulated Entities

Any industrial or commercial facility using

211, 212, 486

Oil and Gas Extraction, mining (except oil and gas); Pipeline Transportation

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Category NAICS1


Regulated Entities

221 Utilities

321, 322, 337

Wood Product Manufacturing, Paper Manufacturing, Furniture and Related Product Manufacturing

325, 326 Chemical Manufacturing, Plastics and Rubber Products Manufacturing

327 Nonmetallic Mineral Product Manufacturing,

333, 336 Machinery Manufacturing, Transportation Equipment Manufacturing

a solid waste incinerator

423, 44 Merchant Wholesalers, Durable Goods, Retail Trade

111

Crop Production

112 Animal Production 113 Forestry and Logging

115 Support Activities for Agriculture and Forestry

211 Oil and Gas Extraction 212 Mining (except oil and gas) 221 Utilities 236 Construction of Buildings 311 Food Manufacturing

312 Beverage and Tobacco Product Manufacturing

313 Textile Mills

316 Leather and Allied Product Manufacturing

321 Wood Product Manufacturing 322 Paper Manufacturing

324 Petroleum and Coal Products Manufacturing

325 Chemical Manufacturing

326 Plastics and Rubber Products Manufacturing

327 NonMetallic Mineral Product Manufacturing

331 Primary Metal Manufacturing

332 Fabricated Metal Product Manufacturing

Any facility or entity generating a non hazardous secondary material that may be burned for fuel or

destruction2

333 Machinery Manufacturing

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Category NAICS1


Regulated Entities

334 Computer and Electronic Product Manufacturing

336 Transportation Equipment Manufacturing

337 Furniture and Related Product Manufacturing

339 Miscellaneous Manufacturing 423 Merchant Wholesalers, Durable Goods

424 Merchant Wholesalers, Nondurable Goods

44-45 Retail Trade (all categories, including non-store retailers, vending and direct sellers)

486 Pipeline Transportation 493 Warehousing and Storage

511 Publishing Industries (except internet)

531 Real Estate

541 Professional, Scientific and Technical Services

611 Educational Services 622 Hospitals

623 Nursing and Residential Care Facilities

624 Social Assistance 713930 Boating Clubs with Marinas 721 Accommodation 722 Food Services and Drinking Places

813 Religious, Grantmaking, Civic, Professional and Similar Organizations

92 Public Administration 1 North American Industry Classification System. 2 Note that some of these NAICS may overlap with institutional facility types where incinerators are regulated by the Other Solid Waste Incinerators (OSWI) emission guidelines and NSPS.

This table is not intended to be exhaustive but rather

provides a guide for readers regarding entities likely to be

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affected by the final action. To determine whether your facility

would be affected by the final action, you should examine the

applicability criteria in 40 CFR 60.2010 of subpart CCCC, 40 CFR

60.2505 of subpart DDDD, and 40 CFR 241. If you have any

questions regarding the applicability of the final action to a

particular entity, contact the persons listed in the preceding

FOR FURTHER INFORMATION CONTACT section.

C. Where can I get a copy of this document?

The docket number for the action regarding the CISWI NSPS

(40 CFR part 60, subpart CCCC) and EG (40 CFR part 60, subpart

DDDD) is Docket ID Number EPA–HQ–OAR–2003–0119.

Worldwide Web. In addition to being available in the

docket, an electronic copy of the final action is available on

the WWW through the TTN Website. Following signature, the EPA

posted a copy of the final action on the TTN’s policy and

guidance page for newly proposed or promulgated rules at

http://www.epa.gov/ttn/oarpg. The TTN provides information and

technology exchange in various areas of air pollution control.

D. Judicial Review

Under the CAA section 307(b)(1), judicial review of this

final rule is available only by filing a petition for review in

The Court April 8, 2013. Under CAA section 307(d)(7)(B), only an

objection to this final rule that was raised with reasonable

specificity during the period for public comment can be raised

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during judicial review. This section also provides a mechanism

for us to convene a proceeding for reconsideration, "[i]f the

person raising an objection can demonstrate to EPA that it was

impracticable to raise such objection within [the period for

public comment] or if the grounds for such objection arose after

the period for public comment (but within the time specified for

judicial review) and if such objection is of central relevance

to the outcome of this rule." Any person seeking to make such a

demonstration to us should submit a Petition for Reconsideration

to the Office of the Administrator, Environmental Protection

Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave.,

NW., Washington, DC 20004, with a copy to the persons listed in

the preceding FOR FURTHER INFORMATION CONTACT section, and the

Associate General Counsel for the Air and Radiation Law Office,

Office of General Counsel (Mail Code 2344A), Environmental

Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC

20004. Note, under CAA section 307(b)(2), the requirements

established by this final rule may not be challenged separately

in any civil or criminal proceedings brought by the EPA to

enforce these requirements. Resource Conservation and Recovery

Act sections of the rule would be subject to judicial review

under RCRA.

E. EXECUTIVE SUMMARY:

Purpose of the Regulatory Action

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The EPA is promulgating final rules that establish

standards for new and existing CISWI units. Section 129 of the

CAA, titled “Solid Waste Combustion,” requires the EPA to

develop and adopt standards for commercial and industrial solid

waste incineration units pursuant to CAA sections 111 and 129.

This final rule makes certain revisions to the final “Standards

of Performance for New Stationary Sources and Emission

Guidelines for Existing Sources: Commercial and Industrial Solid

Waste Incineration Units,” 76 FR 15704 (March 21, 2011), based

on the issues proposed for reconsideration issues (76 FR 40582)

and in response to public comments on the proposed CISWI

reconsideration rule.

On May 18, 2011, the EPA issued a notice that delayed the

effective dates of the March 21, 2011, CISWI rule (the “Delay

Notice”). 76 FR 28662 (May 18, 2011). As the result of that

action, the 2000 CISWI rule remained in effect. The Court

vacated the Delay Notice in January 2012. However, because the

Delay Notice delayed the effectiveness of the CISWI rule from

May 2011 through vacatur of that notice in January 2012, the

revisions to the 2000 CISWI rule that were finalized in the 2011

CISWI rule were never codified in the CFR, but instead appear as

notes after the corresponding provisions of the 2000 CISWI rule

in the CFR. Although the issues on reconsideration were limited

in the December 2011 CISWI reconsideration proposal, we had to

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include in that proposed reconsideration rule all of the

regulatory changes that had been made since the 2000 rule

because the 2011 CISWI rule was not codified in the CFR.

Specifically, we included in the December 23, 2011, proposed

reconsideration rule all of the regulatory changes the EPA had

made to the 2000 CISWI rule in the 2011 CISWI rule, as well as

the changes to the 2011 CISWI rule that the EPA proposed to make

on reconsideration. In response to the Court’s vacatur of the

Delay Notice in January 2012, this final action lifts the delay

of effectiveness so that the CFR can be revised to properly

reflect the revisions to the 2000 CISWI rule that were finalized

in the 2011 CISWI rule. This final action also contains

regulatory text that amends the 2011 CISWI rule to address the

reconsideration. Therefore, this final rule’s amendatory

language differs from that of the December 2011 reconsideration

proposal as it amends the 2011 CISWI rule instead of the 2000

CISWI rule. This change to the amendatory baseline in no way

alters our limitation of the issues for comment for which we

granted reconsideration. We have provided in the CISWI docket a

redline/strikeout file of the 2000 CISWI rule to help

implementing agencies and affected sources to identify the sum

total of the revisions made to the 2000 CISWI rule through

today’s final notice pursuant to the 2011 CISWI rule and this

final action.

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Summary of Major Provisions for the Final Reconsideration

Rule

In general, the final rule establishes revised numeric

emission limits for some new and existing CISWI units for

certain of the nine pollutants listed in section 129(a)(4) of

the CAA.1

The EPA established or revised standards for four

subcategories of CISWI units in the 2011 CISWI rule:

incinerators; small remote incinerators; ERUs; and waste-burning

kilns. The 2011 CISWI rule also included two subcategories of

ERUs. In this final rule, we have further subcategorized ERUs

and subcategorized waste-burning kilns based on design type

differences. Thus, the final rule includes three subcategories

of ERUs and separate CO limits for two subcategories of waste-

burning kilns.

We have further revised some of the CISWI limits proposed

in the reconsideration notice in response to comments on CO span

methodology and because we incorporated additional data,

including new data submitted during the comment period. These

changes primarily affect the ERU and waste-burning kiln

subcategories but also affect some of the limits in each of the

four subcategories.

1 The nine pollutants for which we must issue emission standards under section 129 are: PM, SO2, HCl, NOX, CO, Pb, Cd, Hg, D/F. CAA section 129(a)(4).

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To ensure compliance with the emission limits, this final

rule establishes stack testing and continuous monitoring

requirements. The rule allows sources to use CEMS if an owner or

operator chooses to do so. Continuous parameters and emissions

levels (if used) are measured as either a 3-hour block or a 30-

day rolling average basis, depending on the parameter being

measured and the subcategory of CISWI.

Since sources may choose to cease or start combusting solid

waste at any time due to market conditions or for other reasons,

the final rule contains provisions that specify the steps

necessary for sources to switch applicability between this final

rule and other applicable emission standards issued pursuant to

CAA section 112. This rule also contains revisions to some of

the monitoring, recordkeeping and reporting requirements.

The date existing sources must comply with the final CISWI

rule depends primarily on state plan approval but may be no

later than the date 5 years after publication of this final rule

in the Federal Register. For new sources, the effective date is

either August 7, 2013, or the date of startup of the source,

whichever is later. New sources are defined as sources that

began construction on or after June 4, 2010, or commenced

reconstruction or modification after August 7, 2013.

Costs and Benefits

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The final rule affects 106 existing sources located at 76

facilities. The EPA projects an additional incinerator and five

additional small remote incinerators to be subject to this rule

over the next 5 years. This final rule applies to facilities in

multiple sectors of our economy including small entities. Table

1 of this preamble summarizes the costs and benefits associated

with this final rule. Note, these are the costs and benefits of

the final 2011 CISWI rule as amended by today’s final rule and

replace the costs and benefits presented in the March 2011 final

rule. For comparison, the 2011 final rule, at a 7 percent

discount rate, had costs of $218 million and monetized benefits

of $320 to $790 million (2008 dollars). (However, because the

February 2011 RIA did not incorporate the final engineering

costs and emission reductions estimates, it reported costs of

$280 million and monetized benefits of $310 to $750 million

(2008 dollars)).A more detailed discussion of the costs and

benefits of this final rule is provided in section II.G of this

preamble.

Table 1. Summary of the Monetized Benefits, Social Costs and Net Benefits for the Final CISWI NSPS and EG In 2015 (Millions of 2008$)1

3 percent Discount

Rate 7 percent Discount

Rate

Total Monetized Benefits2

$420 to $1,000 $380 to $930

Total Social Costs3

$258 $258

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3 percent Discount


Rate

Net Benefits $160 to $770 $120 to $670

Health effects from exposure to HAP 780 tons of HCl, 2.5 tons of lead, 1.8 tons of Cd, 680 pounds of Hg, and 58 grams of dioxins/furans)

Health effects from exposure to criteria pollutants (20,000 tons of CO, 6,300 tons of SO

2, 5,400 tons of NO

2, and secondary

formation of ozone)

Ecosystem effects

Non-monetized Benefits

Visibility impairment 1 All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal assumption.

2 The total monetized benefits reflect the human health benefits associated with reducing exposure to PM

2.5 through reductions of

PM2.5

precursors such as directly emitted particles, SO2, and

NOx. It is important to note that the monetized benefits

include many but not all health effects associated with PM2.5

exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effect estimates by particle type.

3The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for both discount rates. II. CISWI Reconsideration and Final Rule

A. Background Information

1. What is the history of the CISWI standards?

On December 1, 2000, the EPA promulgated NSPS and EG for

CISWI units (60 FR 75338), hereinafter referred to as the 2000

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CISWI rule. On January 30, 2001, the Sierra Club filed a

petition for review in the Court challenging the EPA’s final

CISWI rule. On August 17, 2001, the EPA granted a Request for

Reconsideration, pursuant to CAA section 307(d)(7)(B), submitted

on behalf of the National Wildlife Federation and the Louisiana

Environmental Action Network, related to the definition of

“commercial and industrial solid waste incineration unit” and

“commercial or industrial waste” in the 2000 CISWI rule. In

granting the petition for reconsideration, the EPA agreed to

undertake further notice and comment proceedings related to

these definitions. On September 6, 2001, the Court entered an

order granting the EPA’s motion for a voluntary remand of the

CISWI rule, without vacatur. The EPA requested a voluntary

remand of the final CISWI rule to address concerns related to

the EPA’s procedures for establishing MACT floors for CISWI

units in light of the Court’s decision in Cement Kiln Recycling

Coalition v. EPA, 255 F.3d 855 (DC Cir. 2001)(Cement Kiln).

Neither the EPA’s granting of the petition for reconsideration,

nor the Court’s order granting a voluntary remand, stayed,

vacated or otherwise influenced the effectiveness of the 2000

CISWI rule. Therefore, the remand order had no effect on the

effectiveness of the 2000 CISWI rule.

On February 17, 2004, the EPA published a proposed rule

(CISWI Definitions Rule) soliciting comments on the definitions

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of “solid waste,” “commercial and industrial waste,” and

“commercial and industrial solid waste incineration unit.” On

September 22, 2005, the EPA published in the Federal Register

the final rule reflecting our decisions with respect to the

CISWI Definitions Rule. The rule was challenged and, on June 8,

2007, the Court vacated and remanded the CISWI Definitions Rule.

In vacating the rule, the Court found that CAA section 129

unambiguously includes among the incineration units subject to

its standards, any facility that combusts any solid waste

material, subject to four statutory exceptions. While the Court

vacated the CISWI Definitions Rule, the 2000 CISWI rule remained

in effect.

On March 21, 2011, the EPA promulgated revised NSPS and EG

for CISWI units (76 FR 15704)(2011 CISWI rule). That action

constituted a partial response to the voluntary remand of the

2000 CISWI rule and to the 2007 vacatur and remand of the CISWI

Definitions Rule. In addition, the EPA addressed the 5-year

technology review that is required under CAA section 129(a)(5).

On the same day, the EPA issued a notice that it intended to

reconsider certain aspects of the 2011 CISWI rule that warrant

further opportunity for public comment (76 FR 15266).

Following promulgation of the 2011 CISWI rule, the EPA

received petitions for reconsideration from the following

organizations (“Petitioners”): Alaska Oil and Gas

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Association/Alaska Miners Association/ConocoPhillips (AOGA),

American Chemistry Council (ACC), American Foundry Society

(AFS), American Iron and Steel Institute (AISI) and American

Coke and Coal Chemicals Institute (ACCCI), Anthracite Region

Independent Power Producers Association (ARIPPA), American

Petroleum Institute (API) and National Petrochemical and

Refiners Association (NPRA), Auto Industry Forum (AIF), Citizens

Energy Group (CEG), Council of Industrial Boiler Owners (CIBO),

Earthjustice/Sierra Club, Edison Mission Energy, Hovensa L.L.C.

and Tesoro Hawaii Corp., Industry Coalition (AF&PA et al.),

JELD-WEN Inc., Portland Cement Association (PCA), Renovar Energy

Corp., and Waste Management Inc. (WM). Copies of these petitions

are provided in the docket (see Docket ID Number EPA-HQ-OAR-

2003-0119). Petitioners, pursuant to CAA section 307(d)(7)(B),

requested that the EPA reconsider numerous provisions in the

2011 CISWI rule.

On May 18, 2011, the EPA issued a notice to postpone the

effective dates of the March 21, 2011, final CISWI rule. This

notice also requested that the public submit additional data and

information to the EPA by July 15, 2011, for review and

consideration in the reconsideration proceedings.

On December 23, 2011, the EPA published a proposed rule

soliciting comment on the issues on which the EPA was granting

reconsideration. In March 2011, the EPA had publically stated

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its intent to reconsider some of these issues. 76 FR 15266. The

EPA limited comment in the December 23, 2011, proposed rule to

the specific issues on which it was granting reconsideration

which included the following:

• Revising the subcategories and emission limits for ERUs and waste-burning kilns to reflect updated inventories and additional data.

• Establishing limitations on fuel switching provisions.

• Definitions of cyclonic burn barrels, burn-off ovens, soil treatment units, laboratory analysis units and space heaters from CISWI subcategories.

• Providing an affirmative defense for malfunction events.

• Revisions to the CO monitoring requirements.

• Establishing a full-load stack test requirement for CO coupled with continuous O2 (trim) monitoring.

• Establishing a definition of “homogeneous waste.”

• Responding to comments on the 2011 CISWI rule regarding the use of fuel variability in emission limit calculations.

• Responding to comments on the 2011 CISWI rule regarding the review of D/F data and non-detect methodology using three times the detection level.

• Responding to comments on the 2011 CISWI rule regarding providing an option for sources to use emissions averaging to demonstrate compliance.

• Establishing a definition for foundry sand thermal reclamation unit.

• Reinstating the definition of contained gaseous material.

• Revising the definition of chemical recovery unit.

• Allowing for the use of feed stream analysis or other supplemental information to demonstrate compliance.

• Responding to comments on the 2011 CISWI rule regarding providing percent reduction alternative standards.

• Providing parametric monitoring provisions for additional control device types.

• Revisions to the continuous monitoring provisions for large ERUs.

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• Extending effective dates.

• Technical corrections and clarifications.

2. How is the definition of solid waste addressed in the final

CISWI rule?

The RCRA definition of solid waste is integral in defining

the CISWI source category. The EPA defines NHSMs that are solid

waste under RCRA in the final “Identification of Non-Hazardous

Secondary Materials That Are Solid Waste” Rulemaking. In an

action parallel to the March 21, 2011, final CISWI rule, the EPA

promulgated a final rule that identifies whether NHSMs are or

are not solid waste when used as fuels or ingredients in

combustion units. That action, hereinafter referred to as the

“2011 NHSM final rule,” is relevant to the final CISWI rule

because some ERUs and waste-burning kilns combust, in their

combustion units, secondary materials that are solid waste under

the 2011 NHSM final rule. Commercial and industrial units that

combust solid waste are subject to standards issued pursuant to

CAA section 129, rather than to standards issued pursuant to CAA

section 112 that would otherwise be applicable to such units

(e.g., units that would be boilers, process heaters or cement

kilns if they were not combusting solid waste).

3. What is the relationship between this rule and other

combustion rules?

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These amendments address the combustion of solid waste

materials (as defined by the Administrator under RCRA in the

NHSM Definition rule) in combustion units at commercial and

industrial facilities. If an owner or operator of a CISWI unit

permanently ceases combusting solid waste, the affected unit

would no longer be subject to the CISWI rule because the unit

would not be a solid waste incineration unit subject to

standards under CAA section 129. Standards issued pursuant to

section 112 of the CAA may apply to CISWI units that cease

combusting solid waste. For example, CAA section 112 standards

applicable to boilers and process heaters at major sources and

boilers at area sources would apply to boilers and process

heaters that cease combusting solid waste. Boilers and process

heaters that are located at commercial and industrial facilities

and that combust solid waste are subject to CISWI as ERUs. The

EPA has also finalized the CAA section 112 standards for the

Portland Cement Manufacturing Industry (75 FR 21136, September

9, 2010). Cement kilns combusting solid waste are waste-burning

kilns subject to CISWI, not the otherwise applicable CAA section

112 standards.

4. What is the response to the vacatur of effective dates?

On January 9, 2012, the Court vacated the May 18, 2011,

Delay Notice, which delayed the effective dates of the 2011

CISWI rule. On February 7, 2012, the EPA issued a no action

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assurance letter regarding certain notification deadlines in the

March 2011 CISWI rule.

The EPA has conducted outreach to each EPA Regional Office

and it has not found any new CISWI units that commenced

construction since the proposed CISWI rule was published on June

10, 2010. The CAA defines a “new source,” in part, as any source

that commences construction after the publication date of

proposed CAA section 111 and 129 standards2 CAA section

129(g)(2). Based on our outreach efforts, we do not believe

there are any CISWI units that are in noncompliance with the

NSPS contained in the final 2011 CISWI rule.

As explained above, today’s final rule amendatory text

reflects changes to the 2011 CISWI rule, not the 2000 CISWI rule

as in the reconsideration proposal notice. We have provided in

the CISWI docket a redline/strikeout file of the 2000 CISWI rule

to help implementing agencies and affected sources to identify

the sum total of the revisions made to the 2000 CISWI rule

pursuant to the 2011 CISWI rule and this final action.

B. Summary of This Final Rule

As stated above, the December 23, 2011, proposed rule

addressed specific issues and provisions the EPA identified for

2 The date for determining whether a source is a “new” source is the publication date of the proposed standards. The final rule and reconsideration proposal contained a typographical error in 40 CFR 60.2015(a)(1) that did not specify the June 4, 2010, proposal date.

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reconsideration. This summary of the final rule reflects the

agency’s final action in regards to those provisions identified

for reconsideration and on other discrete matters identified in

response to comments or data received during the comment period.

Information on other provisions and issues not proposed for

reconsideration is contained in the notice and record for the

2011 CISWI rule. 76 FR 15704 (March 21, 2011).

1. Subcategories of Affected Units and Emission Standards

This final rule defines a CISWI unit, in part, as any

combustion unit at a commercial or industrial facility that is

used to combust solid waste (as defined under RCRA)(40 CFR

60.2265 (NSPS) and 60.2875 (EG)). We have established standards

in this final rule for the following four subcategories of CISWI

units: incinerators (i.e., units designed to burn discarded

waste materials for the purpose of disposal); small, remote

incinerators; ERUs (i.e., units that would be boilers or process

heaters if they did not combust solid waste); and waste burning

kilns (i.e., units that would be cement kilns if they did not

combust solid waste). We have further subcategorized ERUs into

three subcategories and waste burning kilns into two

subcategories for CO emission limits only. Changes to the

subcategories made since proposal are discussed below in section

II.C of this preamble: “Summary of Significant Changes Since

Proposal.”

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The final rule emission limits for new and existing sources

in the solid-fuel burning ERU subcategory and the waste-burning

kilns subcategories were revised based on changes to the

inventories for those subcategories as discussed below in

section II.C of this preamble: “Summary of Significant Changes

Since Proposal.” Tables 2 and 3 of this preamble present the

final emission limits for all subcategories for existing and new

sources, respectively.

Table 2. Comparison of Existing Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits

CISWI Subcategories

Pollutant

(units)a

Incin-erators (2000 CISWI limit)

Incin-erators

ERUs -Solids

ERUs – Liquid/Gas

Waste-burning kilns

Small, remote incin-erators

HCl (ppmv) 62 29 0.20 (biomass units)/ 13 (coal units)

14b 3.0b 300

CO (ppmv) 157 17 260 (biomass units)/ 95 (coal units)

35 110 (long kilns) / 790 (preheater / precalciner)

64

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CISWI Subcategories

Pollutant

(units)a


Incin-erators

ERUs -Solids

ERUs – Liquid/Gas

Waste-burning kilns


Pb (mg/dscm)

0.04 0.015 0.014b

(biomass units) /

0.14b (coal units)

0.096 0.014b 2.1

Cd (mg/dscm)

0.004 0.0026 0.0014b (biomass units) / 0.0095 (coal units)

0.023 0.0014b 0.95

Hg (mg/dscm)

0.47 0.0048 0.0022 (biomass units) / 0.016 (coal units)

0.0024b 0.011b 0.0053

PM, filterable (mg/dscm)

70 34 11 (biomass units) / 160 (coal units)

110 4.6 270

Dioxin, furans, total (ng/dscm)

(no limit)

4.6 0.52b (biomass units)

/ 5.1b

(coal units)

2.9b

1.3

4,400

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CISWI Subcategories

Pollutant

(units)a


Incin-erators

ERUs -Solids

ERUs – Liquid/Gas

Waste-burning kilns


Dioxin, furans, TEQ (ng/dscm)

0.41 0.13

0.12 (biomass units) /

0.075b

(coal units)

0.32b 0.075b 180

NOx (ppmv) 388 53 290 (biomass units)/ 340 (coal units)

76 630 190

SO2 (ppmv) 20 11 7.3 (biomass units)/ 650 (coal units)

720 600 150

a All emission limits are expressed as concentrations corrected to 7 percent O2.

b See the memorandum in the CISWI docket "CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule" for details on this calculation.

Table 3. Comparison of New Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits

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Final CISWI Subcategories

Pollutant

(units)a

Incin-erators (2000 limit)

Incin-erators

ERUs – Solids

ERUs – Liquid/Gas

Waste-burning kilns


HCl (ppmv) 62 0.091 0.20c (biomass units)/ 13 (coal units)

14b 3.0b 200

CO (ppmv) 157 17 240 (biomass units)/ 95 (coal units)

35 90 (long kilns) / 190 (preheater / precalciner)

13

Pb (mg/dscm)

0.04 0.015b 0.014b (biomass units) /

0.14b (coal units)

0.096 0.014b 2.0

Cd (mg/dscm)

0.004 0.0023 0.0014c (biomass units) / 0.0095 (coal units)

0.023 0.0014b 0.67

Hg (mg/dscm)

0.47 0.00084b 0.0022c (biomass units) / 0.016(coal units)

0.00056d 0.0037b 0.0035

PM, filterable (mg/dscm)

70 18 5.1 (biomass units) / 160 (coal units)

110 2.2 270c

Dioxin, furans, total (ng/dscm)

(no limit)

0.58b 0.52b (biomass units) /

5.1b (coal units)

(no limit)

0.51b 1,800

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Final CISWI Subcategories

Pollutant

(units)a

Incin-erators (2000 limit)

Incin-erators

ERUs – Solids

ERUs – Liquid/Gas

Waste-burning kilns


Dioxin, furans, TEQ (ng/dscm)

0.41 0.13 0.076b (biomass units) /

0.075b (coal units)

0.093d 0.075b 31

NOx (ppmv) 388 23 290c (biomass units)/ 340 (coal units)

76 200b 170

SO2 (ppmv) 20 11c 7.3c (biomass units)/ 650 (coal units)

720 28 1.2

a All emission limits are measured at 7 percent O2.

b See the memorandum “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule” for details on this calculation. c The NSPS limit equals the EG limit. The EG limit was selected as the NSPS limit. d D/F TEQ and Hg limits for ERUs – liquid/gas were replaced with D/F TEQ limits for liquid fuel major source boilers. See “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule" for details. e SO2 limits for Waste-burning kilns were replaced with SO2 limits for Portland Cement NSPS kilns. See “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule" for details.

2. Fuel Switching Provisions

The EPA is finalizing the proposed fuel switching

provisions that address the situation where CISWI units cease

combusting solid waste, and where existing commercial and

industrial combustion units begin combusting solid waste (40 CFR

60.2330 for existing units and 40 CFR 60.2710 for new units).

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Units that cease combusting solid waste remain subject to CISWI

for at least 6 months after solid waste is last added to the

combustion chamber. After 6 months, sources must either comply

with any applicable section 112 standard or, if they intend to

combust solid waste in the future, opt to remain subject to

CISWI and continue to comply with the applicable provisions.

Combustion units located at commercial or industrial facilities

that begin combusting solid waste are solid waste incineration

units on the date they begin combusting solid waste. Existing

units that begin combusting solid waste within 6 months of the

effective date of the CISWI EG must comply with the standards on

the effective date of those standards. Existing units that begin

combusting solid waste after the effective date of the CISWI EG

must comply with those standards at the time the unit begins

combusting solid waste.

3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil

Treatment Units, Laboratory Analysis Units and Space Heaters

We are finalizing the proposed definitions for cyclonic

burn barrels, burn-off ovens, soil treatment units, and

laboratory analysis units. We have revised the proposed

definition for space heaters to clarify applicability for units

that meet the requirements of 40 CFR 279. The final definitions

describe the types of units and state that these different types

of units are not incinerators, small remote incinerators, ERUs,

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or waste burning kilns. The EPA is including these definitions

in the final rule to differentiate these units from the units

for which the agency established standards in the 2011 CISWI

rule and this final action.

4. Affirmative Defense for Malfunction Events

The EPA is retaining in the final rule the proposed

affirmative defense to civil penalties for malfunction events.

The EPA first included an affirmative defense in the 2011 final

rule in an attempt to balance a tension, inherent in many types

of air regulation, to ensure adequate compliance while

simultaneously recognizing that despite the most diligent of

efforts, emission standards may be violated under circumstances

beyond the control of the source. This final reconsideration

attempts to add clarification to the affirmative defense by

revising some of the regulatory provisions that specify the

elements that are necessary to establish this affirmative

defense as proposed – with minor changes from proposal described

later in this section.

Sources are required to comply with the CISWI standards at

all times, and the EPA recognizes that even equipment that is

properly designed and maintained can sometimes fail and that

such failure may cause an exceedance of the relevant standard.

The EPA must establish emission standards that “limit the

quantity, rate, or concentration of emissions of air pollutants

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on a continuous basis.” 42 U.S.C. §7602(k)(defining “emission

limitation and emission standard”). See generally Sierra Club v.

EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008.) The affirmative

defense for malfunction events meets this requirement by

ensuring that even where there is a malfunction, the emission

standard is still enforceable through injunctive relief. See

generally, Luminant Generation Co. v EPA, 2012 U.S. App. LEXIS

15722 (5th Cir. 2012) (upholding EPA’s approval of affirmative

defense provisions in a CAA State Implementation Plan). While

“continuous” standards, on the one hand, are required, there is

also case law indicating that in many situations it is

appropriate for the EPA to account for the practical realities

of technology. For example, in Essex Chemical v. Ruckelshaus,

486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit

acknowledged that in setting standards under CAA section 111

“variant provisions” such as provisions allowing for upsets

during startup, shutdown and equipment malfunction “appear

necessary to preserve the reasonableness of the standards as a

whole and that the record does not support the ‘never to be

exceeded’ standard currently in force.” See also, Portland

Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir.

1973). Though intervening case law such as Sierra Club v. EPA

and the CAA 1977 amendments call into question the relevance of

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these cases today, they support the EPA’s view that a system

that incorporates some level of flexibility is reasonable.

The affirmative defense provisions allow sources to avoid

civil penalties for exceedances caused by a malfunction event if

the source demonstrates by a preponderance of the evidence that

the malfunction event meets the definition of malfunction in 40

CFR 60.2. By incorporating an affirmative defense, the EPA has

formalized its approach to upset events beyond the control of

the source. In a Clean Water Act setting, the Ninth Circuit

required this type of formalized approach when regulating

“upsets beyond the control of the permit holder.” Marathon Oil

Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977). See also,

Mont. Sulphur & Chem. Co. v. United States EPA, 2012 U.S. App.

LEXIS 1056 (Jan 19, 2012)(rejecting industry argument that

reliance on the affirmative defense was not adequate). But see,

Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (D.C. Cir.

1978) (holding that an informal approach is adequate). The

affirmative defense provisions give the EPA the flexibility to

both ensure that its emission standards are “continuous” as

required by 42 U.S.C. §7602(k), and account for unplanned upsets

and thus support the reasonableness of the standard as a whole.

In addition, the affirmative defense provisions are designed to

ensure that steps are taken to correct the malfunction, minimize

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emissions during the malfunction, and prevent future

malfunctions.

We are promulgating revisions to the affirmative defense

provisions in section 60.2120 and 60.2685 as described at

proposal (76 FR 80461) and making some minor additional

revisions. The terms “exceedance” and “excess emissions” and

“applicable emission limitations were being exceeded” were

replaced with the term “violation” to more accurately reflect

that the affirmative defense is only available when there has

been a violation of the standard. The phrase “emission limit”

was changed to “emission standards” to reflect that the

affirmative defense could be applicable to certain work practice

standards. The word “however” was removed to incorporate more

plain language into the regulation. The term “notification” was

changed to “reporting” to reflect that the root cause analysis

required under affirmative defense would be submitted with other

periodic reporting. The term “and monitoring” was deleted

because monitoring malfunctions are defined differently than

malfunctions of process and control units and the affirmative

defense is intended to apply to malfunctions to affected units

that cause a failure to meet an emission standard. In multiple

instances the word “were” was changed to “was” to improve the

clarity of a provision. The term “facility” was changed to

“affected source” to clarify that the affected source regulated

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by the rule must be operated in a manner consistent with good

practices for minimizing emissions versus the entire facility.

The phrase “off shift and overtime labor were used, to the

extent practicable to make these repairs” was removed. The EPA

no longer believes the language concerning the use of off-shift

and overtime labor is necessary because the regulation requires

that to establish the affirmative defense the owner must prove

by a preponderance of the evidence that repairs were made as

expeditiously as possible when a violation occurs. Although we

believe that use of off-shift or overtime labor could be cited

as evidence that the owner or operator expedited repairs, we do

not believe this level of detail is necessary in the regulatory

text. The written report required when asserting an affirmative

defense was changed from a separate “semiannual” report to a

report that is submitted with the first periodic compliance,

deviation report, or excess emission report due after the event.

Lastly, the requirement to notify the Administrator by telephone

or facsimile within two business days” was removed when we

refined the affirmative defense reporting requirements based

upon comments received.

5. Oxygen Correction Requirements and CO Monitoring Requirements

We are finalizing provisions for calculating the 30-day CO

rolling average that allow uncorrected CEMS reading to be used

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during the period of operation from a cold start to bring the

combustion unit up to minimal normal operating temperature. We

are also allowing uncorrected CEMS readings to be used in 30-day

average calculations for the period of operation following the

last waste material (or material feed for waste burning kilns)

being fed to the combustion unit during shutdown procedures of

the unit. For every type of CISWI unit except waste-burning

kilns, the period of time allowed for uncorrected CEMS data

during a startup shall be 48 hours or less per startup event and

shall be 24 hours or less for each shutdown event. For waste-

burning kilns, the period of startup begins when the kiln’s

induced draft fan is turned on and fuel is being combusted and

continues until continuous feed is introduced into the kiln, at

which time the kiln is in normal operating mode. Shutdown begins

when feed to the kiln is halted. Sources must indicate in the

CEMS data records which CEMS data are obtained during the

startup and shutdown periods. Since the O2 correction

calculation will affect all corrected CEMS data, we have

expanded these provisions in the final rule to allow for

uncorrected CEMS data for any pollutant that sources elect to

measure continuously with CEMS and calculate 30-day rolling

averages to demonstrate continuous compliance.

Additionally, we have finalized removal of continuous CO

monitoring requirements for new and existing ERU units. We are

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instead requiring annual CO stack tests and continuous O2

monitoring and we are allowing CO monitoring with CEMS as a

compliance alternative. We have also removed the continuous CO

monitoring requirements for new CISWI units in the other

subcategories, but sources may demonstrate compliance using CO

CEMS if they so choose. The authority to use uncorrected CEMS

data during startup and shutdowns discussed above applies to all

CISWI sources that elect to demonstrate compliance with any

emission limits with a CEMS instead of performing annual stack

tests. Changes to the CO and other optional CEMS monitoring

requirements made since proposal are discussed below in Section


Proposal.”

6. Full-load Stack Test Requirement for CO Coupled With

Continuous O2 Monitoring

We are finalizing the full-load stack test and continuous

O2 monitoring provisions in today’s action that allow existing

sources to use their current O2 analyzer and O2 trim systems to

demonstrate continuous compliance. Based on comments received,

we have made some clarifying changes to these provisions to be

clear that existing O2 trim systems and O2 monitors may be used

to demonstrate continuous compliance, as well as clarifications

on establishing the operating limits for O2 content. Changes to

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the continuous O2 monitoring requirements made since proposal

are discussed below in section II.C of this preamble: “Summary

of Significant Changes Since Proposal.”

7. Non-detect Methodology Using Three Times the Detection Level

Since proposal, the EPA continued its review of sampling

volumes and detection levels across various emission testing ICR

efforts on various combustion sources to encompass additional

pollutants measured using EPA Reference Method 29 (See

memorandum “Updated data and procedure for handling below

detection level data in analyzing various pollutant emissions

databases for MACT and RTR emissions limits” in the CISWI

docket). As a result of this analysis, we have determined

recommended values for three times the RDL that may be used as a

minimum emission limit value that can be accurately measured by

most laboratories for Cd and Pb.3

Furthermore, based on comments on our application of this

non-detect methodology approach to CO data measured using

instrument methods, we have made some modifications to the span

calculation approach used in the proposed rule. Changes to the

emission limits for Cd, Pb and the span adjustment calculations

for CO made since proposal are discussed below in section II.C

3 The RDL methodology is consistent with the RDL methodology outlined in the December 2011 reconsideration proposal. 76 FR 80463.

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of this preamble: “Summary of Significant Changes Since

Proposal.”

8. Definitions for Foundry Sand Thermal Reclamation Unit and

Chemical Recovery Unit

We are finalizing the proposed definitions of “foundry sand

thermal reclamation unit” and “chemical recovery unit” to

clarify that these units are not incinerators, waste-burning

kilns, ERUs or small, remote incinerators under subparts CCCC or

DDDD.

9. Definition of Contained Gaseous Material

In today’s final rule, we have reintroduced and finalized

the definition for “contained gaseous material” as found in the

2000 CISWI rule as proposed. As discussed earlier, the Court’s

vacatur of the Delay Notice now requires this definition to be

reintroduced since we are now amending the 2011 CISWI rule

instead of making amendments to the 2000 CISWI rule as when we

published the December 2011 reconsideration proposal.

10. Parametric Monitoring Provisions for Additional Control

Device Types

In the proposed rule, we requested comment on whether there

were additional control device types that we should identify

monitoring provisions for in the rule. We received comments on

this topic and, in today’s final rule, are including monitoring

provisions for sorbent injection rate for dry scrubber control

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devices (40 CFR 60.2165 and 40 CR 60.2730). We have also

clarified that sources that elect to use optional CEMS to

monitor continuous compliance for Hg, D/Fs or NO2 may do so as a

substitute for parametric monitoring of ACI and SNCR control

devices, respectively. Changes to the parametric monitoring

provisions made since proposal are discussed below in section


Proposal.”

11. Particulate Matter Continuous Monitoring Provisions for

Large ERUs and Waste-burning Kilns

In today’s rule, we are finalizing some revisions to the

monitoring requirements for ERUs with an annual average heat

input rate greater than 250 MMBtu/hr and extending the same PM

continuous monitoring provisions to waste-burning kilns. In the

final 2011 CISWI rule, these units were required to monitor

continuously for PM using a PM CEMS; however, the PM CEMS

technology may not be sufficient to certify accurate monitor

performance in the PM concentration range of the CISWI biomass

ERU and waste-burning kiln limits. Therefore, we are requiring

continuous PM parameter monitoring systems for these units

similar to those being required for major industrial boilers and

utility boilers. The EPA is further requiring that a site-

specific parametric operating limit be established during the

performance test, that there be continuous monitoring of that

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parametric limit using a PM CPMS, that four deviations within a

12-month operating period constitute a violation and trigger

immediate corrective action and a Method 5 performance test

within 30 days with an additional 15 days to reestablish a site-

specific operating limit.

We have revised all operating parameter averaging for ERU

units to be on a 30-day rolling average and allowed the sorbent

injection parameter to be adjusted for varying ERUs based on

load. Changes to the PM continuous monitoring provisions and

operating parameter provisions made since proposal are discussed

below in section II.C of this preamble: “Summary of Significant

Changes Since Proposal.”

12. Revised Definition of Waste-burning Kiln

This final rule includes a definition of waste-burning kiln

that has been revised since the March 2011 CISWI Rule. This

definition helps clarify the EPA’s intent regarding which types

of Portland cement kilns are considered subject to CISWI

standards and which kilns are subject to the Portland cement

NESHAP. Since proposal, some additional language was added to

this definition to further clarify our proposed definition.

Changes to the definition of waste burning kiln made since

proposal are discussed below in section II.C of this preamble:

“Summary of Significant Changes Since Proposal.”

13. Revised Definition of Solid Waste

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In the March 21, 2011, final CISWI rule, we removed the

definition of solid waste that was present in the 2000 CISWI

Rule in light of the definition of solid waste in the final NHSM

rule. Because applicability of section 129 hinges on sources

combusting solid waste, we believe it is appropriate to include

a definition of that term in the CISWI rule. For that reason,

the final rule contains a definition of solid waste that refers

to the final NHSM rule at 40 CFR 241.2.

14. Compliance Dates

In the final rule, we are revising the compliance dates for

new and existing CISWI units to reflect the effective dates of

this final rule. The compliance date for existing sources

depends primarily on state plan approval but may be no later

than the date 5 years after publication of this final rule in

the Federal Register. The EG are implemented through a state

implementation plan or a federal plan. Under the final

amendments to the EG, and consistent with the CAA section 129,

revised state plans containing the revised existing source

emission limits and other requirements in the final amendments

are due within 1 year after promulgation of the final

reconsideration amendments. States must submit revised state

plans to the EPA by February 7, 2014. The EPA will revise the

existing federal plan to incorporate any changes and other

requirements that the EPA has promulgated. The federal plan

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applies to CISWI units in any state without an approved state

plan. Additional discussion of the state plan implementation

schedule can be found at 76 FR 15711.

For new sources, the compliance date is either [DATE 6

MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL

REGISTER] or the date of startup of the source, whichever is

later. New sources are defined as sources that began

construction on or after June 4, 2010, or commenced

reconstruction or modification after [DATE 6 MONTHS AFTER

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].

15. Revised New Source Performance Standards

In the 2011 CISWI rule and the proposed reconsideration

rule, EPA determined that the best controlled similar unit under

section 129(a)(2) was not a solid waste incineration unit for

certain new source standards. Specifically, the new source

limits for certain pollutants from waste burning kilns and ERUs

were based on cement kilns and boilers, respectively. See

memorandum “CISWI Emission Limit Calculations for Existing and

New Sources” in the CISWI docket. Both the industrial boiler

NESHAP and the Portland cement NESHAP are being revised, and

additional data has been incorporated into the new source MACT

analyses for those rules. As a result of the new data and

analyses, several of the new source NESHAP limits are being

revised and EPA is changing the following new source limits in

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CISWI based on the revised limits in the NESHAPs: NOX for waste-

burning kilns, and Hg and PCDD/PCDF for ERU-liquid/gas units.

C. Summary of Significant Changes Since Proposal

1. Revision of the Subcategories

Energy Recovery Units

In the final 2011 CISWI Rule, we established separate

subcategories based on the types of fuels and wastes ERUs were

designed to burn. Energy Recovery Units (e.g., units that would

be boilers and process heaters but for that fact that they

combust solid waste) designed to burn gaseous fuels and liquids

that are solid waste were included in one primary subcategory

and the other primary subcategory was for units designed to burn

solid fuels or predominantly non-coal solid materials. In the

final 2011 CISWI rule, the solid fuel ERU subcategory was

further divided into separate subcategories for coal and biomass

units, with separate limits for CO, NOx and SO2 to account for

significant differences in unit design for these two types of

fuels and the impacts the different unit designs have on

emissions of these pollutants.

Because the public was not afforded an opportunity to

comment on the revision to the ERU subcategory, we identified

this as a reconsideration issue in the March 21, 2011, notice of

intent to reconsider certain aspects of the 2011 CISWI Rule.

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Certain petitions for reconsideration supported the further

subcategorization of the solid-fuel ERU subcategory and

suggested that all nine emission limits should be divided

between coal and biomass ERUs, instead of only having different

limits for CO, NOx and SO2.

We granted reconsideration of our subcategorization

approach for ERUs and proposed to establish different emission

limits for PM, Cd, Pb, and D/F between coal and biomass units,

in addition to establishing different limits for CO, NOx and

SO2. We also solicited comment on whether we should also

subcategorize solid-fuel ERUs for HCl and Hg.

Based on comments and information received during the

comment period, we have determined that it is appropriate to

subcategorize solid fuel ERUs for all nine CAA section 129

pollutants. We recognize that there are significant design and

operational differences between biomass and coal ERU units that

impact the generation of all nine regulated pollutants, and, for

this reason, we are establishing separate emission standards for

all nine pollutants from coal and biomass ERUs in this final

rule.

In addition, since issuing the proposed reconsideration

CISWI rule, we have received comments and data which allowed us

to update our inventory of ERUs. The inventory adjustments we

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made more accurately reflect the inventory of solid waste

combustion units. Based on comments from the operator of the

units, we removed three units from the final rule inventory of

biomass ERUs that were determined to be non-waste burning units

and we re-analyzed the emission limits for the solid-biomass ERU

subcategory. The commenter explained that, although permitted to

burn materials that would be considered solid waste, these units

had ceased burning the materials in question several years ago

and would not recommence burning these in the future. Thus, at

the time of testing, these units were not solid waste

incineration units. We also received additional CO emissions

data and re-analyzed the performance of the best-performing ERU

in the solid-coal ERU subcategory. The emission limits in this

final rule reflect the new inventory and emission data received;

however, we have used the same methodology as in the 2011 CISWI

rule and December 23, 2011, reconsideration proposal for

establishing the emission limits.

Waste-burning Kilns

Prior to the reconsideration proposal, the EPA performed an

analysis of the materials being combusted in the entire

inventory of Portland cement kilns in light of the final NHSM

rule (See memorandum “Revised Floors without Kilns that Would

have been CISWI Kilns Had the Solid Waste Definition Applied” in

the CISWI docket). As a result of this analysis, we added 11

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kilns to our inventory of waste-burning kilns. In addition to

this, we further reviewed the Portland cement emissions test

records and identified some additional test data for kilns that

were added to the CISWI inventory following the March 21, 2011,

final rule publication. This newly-identified data was extracted

and compiled into the CISWI database, and then the MACT floor

emission limits were re-calculated in the December 23, 2011,

proposed rule to reflect the updated inventory and additional

data. Following proposal, we were also notified of one

additional waste-burning kiln and that one of the kilns in the

inventory was not burning waste materials. We made these

adjustments to our inventory, bringing the total waste-burning

kiln inventory to 23 kilns. We recalculated the standards in

this final rule to include all 23 waste burning kilns.

As with the new ERU standards, we have used the same

methodology to establish today’s emission limits as we used for

the final 2011 CISWI rule. We have also retained the emissions

concentration basis for the standards. However, Table 4 of this

preamble presents the emission limits for PM, NOx, SO2 and Hg on

a production basis for comparison.

Table 4. Waste-burning Kiln Emission Limits Expressed in Production Basis

Pollutant (units) Existing kilnsa New kilnsa Hg (lb/MM ton clinker) 58 21 PM (lb/ton clinker) 0.026 0.013 NOx (lb/ton clinker) 6.7 1.5

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Pollutant (units) Existing kilnsa New kilnsa

SO2 (lb/ton clinker) 8.9 0.4 a. Approximate. Small remote incinerators

After the reconsideration proposal, we received additional

information from stakeholders of additional units in operation

and planned for operation within the next year or two that would

qualify as small remote incinerators. The resulting changes

included moving one unit from the small remote incinerator

subcategory to the incinerator subcategory due to the unit’s

proximity to a landfill in Alaska. An additional 15 small

remote incinerators were added to our inventory of existing

units, bringing the total of this subcategory to 28 units. This

additional information resulted in changes to the emissions

limits.

2. Revisions to the Monitoring Requirements

After the March 21, 2001 final rule, petitioners identified

computational issues for correcting CO concentration

measurements to 7 percent O2 for periods when the O2 content of

the flue gas approaches the ambient air O2 content during

startup and shutdown periods for sources that demonstrate

compliance with the CO limit using CEMS. The equation for the 7

percent O2 correction is X ppm CO*(20.9 – 7)/(20.9 - %O2 of flue

gas stream). As seen by this equation, as the flue gas stream O2

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content gets closer to 20.9, the value of X is multiplied by an

ever increasing factor. For example, when the stack gas O2

content is 4 percent, the factor is 0.82. If the stack gas O2

content is 20 percent, the factor increases to 15.4. Therefore,

a flue gas CO concentration reading of 100 ppm would be

corrected to 82 ppm for a stack gas at 4 percent O2 content, but

would become a 1,540 ppm corrected concentration for a stack gas

at 20 percent O2 content. In the extreme, at a 20.8 percent

stack gas concentration (i.e., approximating ambient air O2

content), the same 100 ppm measurement would be corrected to

13,900 ppm.

Petitioners noted that O2 contents relatively close to

ambient air often are maintained during combustion unit startup

and shutdown in order to safely operate the combustion unit.

Therefore, CO readings during these periods would be multiplied

by an uncharacteristically high correction factor, and the

resulting corrected CO concentrations inflated due to the 7

percent O2 correction. Petitioners and commenters presented data

that show these corrected data points would have the potential

to drive the 30-day rolling average values beyond the emission

limit for the affected units, but this would not be an accurate

reflection of the CO emissions.

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Petitioners suggested various approaches to remedy this

situation, with one being to not require the 7 percent O2

correction requirement during unit startup and shutdown for

sources that demonstrate compliance with the CO limit using

CEMS. In other words, the CEMS data as reported at stack gas

concentration without O2 correction would be included in the

rolling average calculations for periods when the combustion

unit is either being started up or shutdown instead of applying

the O2 correction to that data before it is included in the

calculation of the 30 day rolling average. During all other

operating periods, the CEMS data would be corrected to a 7

percent O2 concentration prior to calculating the rolling

average. Stated otherwise, the data obtained during startup and

shutdown, which will not include the 7 percent O2 correction,

will be added to the O2 corrected data collected during all

other periods to calculate the 30-day average that is used to

determine continuous compliance with the applicable CO limit for

sources that demonstrate compliance using CEMS.

Prior to issuing the reconsideration proposal, we received

data for one unit in one subcategory (coal ERUs) that indicated

startups usually occur over a 4-hour period and shutdowns occur

over a 1 hour period. Therefore, we proposed provisions for

calculating the 30-day CO rolling average that would allow the

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source to use CEMS data that does not include the O2 correction

to be used during the first 4 hours of operation from a cold

start and the 1 hour of operation following the last waste

material being fed to the combustion unit during shutdown

procedures of the unit. Since proposal, however, we received

comments on this provision, primarily pointing out that longer

periods are required to protect combustion equipment from rapid

temperature swings, which could cause damage to the fireboxes or

kiln surfaces. Commenters also contended that the limited

information concerning the startup and shutdown periods during

which the O2 correction would not be required did not reflect

the needs for all combustor types or control device

configurations. We have therefore revised the shutdown and

startup period of operation to be more generally applicable to

CISWI units. In the case of ERUs, incinerators and small remote

incinerators, we determined that the startup period should

include the times prior to the source reaching the minimal

operating temperature, but in no case longer than 48 hours. For

shutdown, we determined as at proposal that shutdown begins

after the last waste has been fed to the combustor prior to

shutdown but we have revised the final rule to indicate that the

shutdown period may not exceed 24 hours. We have, therefore,

specified in the final rule an UL of 48 hours for startup

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periods to use uncorrected CEMS data and 24 hours for shutdown

periods to use uncorrected CEMS data for ERUs, incinerators and

small remote incinerators. For waste-burning kilns, these

periods are triggered off of material feed to the kiln rather

than solely waste feed. This addresses the fact that kilns,

unlike other CISWI units, are producing product rather than

solely disposing of waste or recovering energy. Therefore, for

waste-burning kilns, startup begins when the kiln’s induced fan

is turned on and continues until continuous feed is introduced

into the kiln at which time the kiln is in normal operating

mode. Shutdown begins when feed to the kiln is halted.

As at proposal, sources must indicate in the CEMS data

records which CEMS data are uncorrected because they were

obtained during the startup and shutdown period.

The O2 correction issue described above for CO CEMS data

collected during startup and shutdown applies equally to other

pollutants measured with a CEMS that is corrected to 7 percent

O2. The final CISWI rule allows sources to demonstrate

compliance with any of the standards using CEMS, and, for this

reason, we have expanded authorization to use uncorrected CEMS

data during periods of startup and shutdown to all pollutants

for which a source demonstrates compliance with CEMS. In the

final rule, the 7 percent O2 correction is not required during

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startup and shutdowns for any CISWI sources that elect to

demonstrate continuous compliance with any of the emission

limits with a CEMS instead of stack tests.

3. Oxygen Monitoring Requirements

At proposal, we included provisions and definitions in an

attempt to ensure that sources would be able to use existing O2

monitoring systems to meet the continuous O2 monitoring

requirements. However, commenters identified potential issues

with our proposed provisions and definitions. To address these

commenters’ concerns, we have revised the provisions in 40 CFR

60.2165 and 40 CFR 60.2730 to clarify the methodology for

establishing and monitoring the O2 level. Furthermore, the

definition of “oxygen analyzer system” has been revised to

clarify the appropriate locations and nomenclature of possible

existing monitoring systems so that their use to meet these

requirements is fully enabled.

4. Removal of the Definition of Homogeneous Waste

The EPA included in the final 2011 CISWI Rule a definition

of homogenous waste and a process for evaluating claims that a

particular waste stream is homogenous. The definition was added

to the 2011 CISWI rule in response to comment. Because the

determination of homogeneity of a waste stream is relevant to

applicability of CAA section 129 to qualifying small power

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producers and qualifying cogeneration facilities, we determined

it was reasonable to include a definition of “homogenous waste”

and a process by which sources could obtain a determination that

a waste stream is homogenous from the EPA.

In the 2011 CISWI Rule, the EPA stated that a determination

concerning whether a waste is homogeneous is made on a case-by-

case basis. The EPA added provisions to the CISWI final rule

that require source owners or operators seeking the exemption to

submit a request for a homogeneous waste determination to the

EPA, and that they support their request with information

describing the materials to be combusted and why they believe

the waste is homogeneous. The 2011 CISWI rule also stated that

the determination of what constitutes a homogeneous waste is not

delegable to the state or local agencies. In the December 23,

2011, reconsideration proposal, we proposed for comment the

definition of “homogeneous waste” and the provisions for making

homogeneous waste determinations that were included in the 2011

CISWI rule.

Commenters generally did not agree with the proposed

definition and provisions for making a homogeneous waste

determination, arguing that the definition and provisions

introduced ambiguities and stipulations that would prevent

classification of many materials (including fossil fuels) as

being “homogeneous.” We reevaluated the definition and

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provisions in light of the comments and determined that the

definition and provisions could be interpreted in a manner that

would be unduly restrictive; however, we also determined that

commenters proposed alternative definitions and provisions were

equally problematic. Therefore, the final rule does not include

a definition of “homogeneous waste”. We are also removing the

requirement that qualifying small power producers and qualifying

cogeneration facilities that combust solid waste obtain a

determination from EPA that such waste is homogenous. Because

the final rule does not include a homogenous waste definition or

a process to obtain a determination from EPA, we believe that it

is appropriate to inform the EPA when a unit qualifies as a

small power generator or cogeneration facility as defined under

section 129 because the site specific fact patterns for

different types of waste may vary considerably. Therefore, the

final rule requires qualifying small power producers and

qualifying cogeneration facilities that combust solid waste

notify the EPA that such waste is homogeneous. (40 CFR 60.2020

and 40 CFR 60.2555).

Section 129 states, in part, that the term “solid waste

incineration unit” does not include:

…qualifying small power production facilities, as

defined in section 796 (17)(C) of title 16, or

qualifying cogeneration facilities, as defined in

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section 796 (18)(B) of title 16, which burn

homogeneous waste (such as units which burn tires

or used oil, but not including refuse-derived

fuel) for the production of electric energy or in

the case of qualifying cogeneration facilities

which burn homogeneous waste for the production of

electric energy and steam or forms of useful

energy (such as heat) which are used for

industrial, commercial, heating or cooling purposes…

CAA Section 129(g)(1)(B) (emphasis added)

We believe that the parenthetical contained in the

exemption that prohibits refuse derived fuel, which is made from

municipal solid waste, from qualifying as homogenous waste and

allows tires and used oil to qualify as homogenous wastes

provides guidance on what constitutes a homogenous waste. We do

not accept industry’s assertion that any waste from a common

source is homogeneous, or that in all cases combining two

homogeneous wastes results in a homogeneous waste, as doing so

could result in almost any waste stream being homogenous. We do

not believe that is consistent with the statute. Instead, we

believe Congress intended this exemption to apply only when the

waste stream has a consistent makeup that allows the source and

the enforcement authority to predict the range of emissions from

the combustion of the waste on an ongoing basis.

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In keeping with this interpretation, we maintain that the

homogeneous wastes are generally material specific (e.g., tires

or used oil). We believe this means that a homogeneous waste is

of known origin and that it can be identified as a specific

material or materials – using the example in the Act, certain

used oils or scrap tires. By contrast, municipal solid waste can

be identified as municipal solid waste as a general term, but it

is not composed of only one or two specific type of waste; e.g.

municipal solid waste cannot be identified as one specific

material or group of materials. Regarding variability of the

composition of homogeneous waste throughout, homogeneous waste

may have variations in composition, but it should generally be

within the range of operations which produce the waste (e.g.,

size, contaminant levels, state of matter.) We also believe

that off-spec materials may be homogeneous, even if they are not

homogeneous to the on-spec material, and that, if combusted

together, both the on-spec and off-spec materials may require

separate homogenous waste determinations. We also believe that

homogeneous waste should have predictable known contaminant

levels, even if those contaminant levels vary within a range.

We may question the homogeneity of a specific material if it is

adulterated such that it takes on the characteristics of a

different type of waste (e.g., used oil which is so contaminated

with PCB’s from a leaking heat exchanger, such that the used oil

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takes on the characteristics of a waste PCB stream as opposed to

a used oil stream) or where the BTU value of a waste is so

altered that other fuels must be introduced to ensure combustion

and preserve the purpose of combustion under the exemption, i.e.

to produce energy.

5. Non-detect Methodology Using Three Times the Detection Level

Prior to reconsideration proposal, the EPA conducted a

review of sampling volumes and detection levels across various

emission testing ICR efforts on various combustion sources (See

memorandum “Updated data and procedure for handling below

detection level data in analyzing various pollutant emissions

databases for MACT and RTR emissions limits” in the CISWI

docket). As a result of this analysis, we determined recommended

values for three times the RDL (3xRDL) that may be used as a

minimum emission limit value that can be accurately measured by

most laboratories. These recommended values were then compared

with calculated emission limits and, if the calculated limit was

less than the recommended 3xRDL, the 3xRDL value was selected as

the limit. Since the December 23, 2011, reconsideration proposal

was published, we have continued our review and determined 3xRDL

values for additional metals measured using EPA Reference Method

29. These include recommended values for Cd and Pb and we have

applied this methodology to those emission limits in addition to

the D/F and Hg limits that were reevaluated in the

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reconsideration proposal. As discussed in the reconsideration

proposal, the premise for this approach is the same as described

in the final 2011 CISWI rule but using a broader data set to

establish the 3xRDL value. We have not changed the methodology

of the emission limit calculation or tabulation of the three

times the detection limit value that was used in the final 2011

CISWI rule.

Since reconsideration proposal, some commenters have noted

that the EPA Method 5 minimum catch values were below levels

established in similar studies on this reference method. In

light of these comments, we have reconsidered the 1 mg minimum

catch value used in the reconsideration proposal and are now

using a 1 mg minimum catch in establishing the final rule

emission limits. Our review and determination of the 1 mg

minimum catch are discussed in “Minimum Detection Limit for EPA

Method 5” in the CISWI docket.

In a similar fashion, the CO span adjustment methodology

has been further refined in consideration of comments on the

approach used to adjust CO instrumental test methods readings in

reconsideration proposal. The methodology for adjusting CO

emission test run data to reflect the limitations from the

instrument span used at testing is described in the “CISWI

Emission Limit Calculations for Existing and New Sources for the

Reconsideration Final Rule" memorandum in the CISWI docket.

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6. Parametric Monitoring for Additional Control Device Types

In the December 23, 2011, reconsideration proposal, we

stated that we believed the control devices with monitoring

provisions expressly identified in the rules should encompass

most types of control devices that we anticipate the various

types of CISWI units will use to meet the emission limits.

However, recognizing that a source might want to employ another

type of control that is not addressed, we provided provisions

for sources to petition for specific operating limits for

alternative control devices to be established during a

performance test. These provisions also allow specific operating

limits to be established for CISWI units without any air

pollution control devices, such as for units that employ

material balance operating limits in conjunction with periodic

stack testing to demonstrate continuous compliance.

We also determined that dry sorbent injection (or dry

scrubbers) may be one type of additional control device that

CISWI units may widely use to control acid gases. Commenters

agreed with our statement and encouraged the EPA to identify

operating parameters for dry scrubbing systems in the final

rule. We have done so, by both defining “dry scrubber” in the

rule, and specifying that the sorbent injection rate must be

monitored and maintained at or above the operating rate

established during the HCl performance test (40 CFR 60.2165 and

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40 CFR 60.2730). Furthermore, we have determined that the

sorbent injection rate for ERUs can be adjusted to reflect

operating loads that are less than those during the performance

testing. Commenters have made arguments that requiring a high

sorbent injection rate during reduced boiler loads can lead to

fouling and plugging issues, especially for acid gas sorbent

injection. To address this particular concern, and to provide

consistency with other industrial boiler rules, we are also

providing this parametric monitoring provision for sorbent

injection air pollution control devices.

Also regarding monitoring, we determined after proposal

that we had not clarified in the rule that sources opting to use

CEMS to measure NOX, Hg or D/F were not required to monitor ACI

rates (for Hg and D/F CEMS-equipped units) or SNCR parameter

monitoring (for NOX CEMS-equipped units). Our intent had been to

not require applicable control device parameter monitoring if a

CEMS was in use for the pollutant being controlled by the

device. Control device parameter monitoring is an acceptable and

established method for determining continuous compliance and it

is appropriate to require such monitoring when coupled with

period stack testing. However, direct, continuous emission

measurements with a CEMS are sufficient for determining

compliance for CISWI units without requiring parametric

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monitoring. In cases where CEMS data are available to directly

measure regulated pollutants, operating parameter data would be

duplicative.

7. Particulate Matter Continuous Monitoring Provisions for Large

ERUs and Waste-burning Kilns

In today’s rule, we are finalizing monitoring requirements

for ERUs with an annual average heat input rate greater than 250

MMBtu/hr. As we stated in the proposal, recent EPA experience

with the utility boiler source category has led the EPA to allow

PM CEMS as an alternative, rather than a requirement. Industry

commenters have maintained that there were several problems with

implementing the monitoring requirements to demonstrate

compliance using a PM CEMS and with the requirements to conduct

a periodic audit of the PM CEMS in accordance with PS 11 of

appendix B and Procedure 2 of appendix F to part 60. As we

discuss in response to these comments later in this preamble

(See II.E), the PM CEMS technology may not be sufficient to

certify accurate monitor performance in the PM concentration

range of the CISWI biomass ERU limits. Furthermore, in related

ongoing work on the Portland cement source category, we realize

that similar concerns regarding PM CEMS are applicable.

Therefore, we are also removing PM CEMS (PS-11) requirements for

waste-burning kilns, and instead, requiring PM CEMS equipment

for these units that are used for continuous parametric

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monitoring rather than for direct measure of compliance with the

numerical PM emissions limit, similar to those being required

for major industrial boilers and utility boilers. However, PM

CEMS (PS-11), are still allowed as an option for coal ERUs,

incinerators and small remote incinerators, since the emission

limits for these subcategories do not pose the same technical

concerns as for biomass ERUs and waste-burning kilns. To be

consistent with these other rules, we have incorporated 30-day

rolling averages to be measured with PM CPMS. The EPA is further

requiring that a site-specific parametric operating limit be

established during the performance test, that there be

continuous monitoring of that parametric limit using a PM CPMS,

that an exceedance of that site-specific operating limit be

reported as a deviation and trigger immediate corrective action

and a Method 5 performance test within 45 days.

8. Compliance Dates

At reconsideration proposal, we proposed to extend the

compliance dates for existing units in the incinerator, ERU and

waste-burning kiln subcategories. We are finalizing the revision

of the effective dates for those three subcategories and, based

on comments received, we are also extending the compliance date

for units in the small remote incinerator subcategory. The EPA

proposed to amend the standards for CO for all subcategories of

CISWI; to further subcategorize certain subcategories; to change

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several other pollutant standards for incinerator, ERU and waste

burning kilns subcategories; to change the compliance regime

from CEMS-based to stack-test/parametric-monitoring based for

certain pollutants and unit types; and to change the compliance

calculation provisions for sources that are required or that

elect to use CEMS to demonstrate continuous compliance. These

proposed changes may occasion the need for additional time for

sources to study the possibility of different control and

monitoring strategies than would have been considered if we had

not amended the 2011 CISWI rule. New compliance strategies may

require time to implement. New engineering studies may be

needed, potential suppliers identified, a new

bidding/procurement process undertaken and the appropriate

construction and operating permits obtained. Significant plant

redesign, in the form of new ductwork and new fan design and

changes in the main control equipment may be needed. See US EPA,

Engineering and Economic Factors Affecting the Installation of

Control Technologies for Multipollutant Strategies, October

2002. Depending on the type of control, this normally requires

15-27 months. Multiple control systems may take longer. Id.

Installation of controls normally occurs at times of unit

outages, which will likely end up being at differing times of

the year for each of the CISWI subcategories. For example, for

waste-burning kilns, this would occur during winter months (to

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coincide with kiln outages during low production seasons).

However, for small remote incinerators, facility retrofits would

need to occur while road access to the site is available and

climatic conditions allow for construction. Also, small remote

incinerators have the additional component of having to increase

the footprint of the site to accommodate additional space for

control devices and waste segregation facilities. This

additional permitting requirement and construction effort is not

something other CISWI subcategories have to face but adds an

additional consideration to developing a compliance strategy. In

general, though, the differing construction constraints for the

various subcategories of CISWI likely mean that there will be a

wide variety to the rate of progress towards compliance for the

differing CISWI sources. Further, commenters have argued that,

due to the delay of the final 2011 CISWI rule, uncertainty on

selecting a compliance strategy was created, essentially putting

internal compliance implementation activities on hold until the

reconsideration was complete. As a result of these

considerations, we have finalized extending compliance for all

subcategories of CISWI. Comments on extending the compliance

date and our responses to these comments are found in the

“Summary of Comments and Responses to the CISWI Reconsideration”

document in the CISWI docket.

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The compliance date for existing CISWI sources subject to

standards in this final rule is 5 years after the date of

publication of this final rule or 3 years after the state plan

is approved, whichever happens earlier. This date is being

finalized in order to provide facilities sufficient time to

install controls or to make other compliance-related decisions.

However, the CAA section 129(f)(2) does require that the

promulgated standards be effective “as expeditiously as

practicable after approval of a State plan,” so that states have

the flexibility to determine that the standards for existing

units within their purview may have a compliance date which is

less than the allowable 3 years following approval of the state

plan. For new sources, the EPA is finalizing the proposed change

of the compliance date to 6 months after the date of publication

of the final reconsideration rule or at startup, whichever is

later.

9. Definition of Waste-burning Kiln

In the December 23, 2011, reconsideration proposal, we

proposed revisions to the definition of “waste-burning kiln” to

indicate that the term “does not include a kiln that is feeding

non-hazardous secondary ingredients exclusively into the cold

end of the kiln.” In proposing this language, the EPA intended

to codify principles set out in a previous action granting and

denying reconsideration of the NESHAP for Portland cement kilns.

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See 76 FR 28318, 28322 (May 17, 2011); see also Memorandum

“Revised Floors Without Kilns That Would Have Been CISWI Kilns

Had the Solid Waste Definition Applied” (EPA, April 25, 2011)

(which memorandum is summarized in the May 17 Federal Register

notice). The May 17, 2011, notice and April 25, 2011, memorandum

state in essence that combustion does not occur in any region of

a cement kiln except the hot end and that cement kiln dust added

to the hot end of a cement kiln also is not combusted since it

is inorganic and essentially inert.

The language used at proposal captured some but not all of

these principles, since it referred only to the “cold end” of a

cement kiln, as pointed out by a number of commenters. The EPA

is revising the definition in the final rule to accurately

reflect the May 17 preamble and April 25 memorandum discussion

of when combustion occurs in a cement kiln. In addition, we are

adding the fact that combustion in a cement kiln does also take

place in the combustion zone of a precalciner or riser duct

burner.

One further clarification is appropriate. The May 17, 2011,

preamble contains one reference to legitimacy criteria for

determining when a secondary material is being recycled. 76 FR

at 28322/1-2. The threshold issue for determining if a unit is

subject to section 129 is whether it “combusts” solid waste

material (see section 129 (g)(1)). For cement kilns, this

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determination does not necessarily turn on legitimacy of

recycling, but rather on the nature of the cement kiln process.

Consequently, if combustion of solid waste is not occurring, a

unit is not a CISWI, irrespective of whether or not legitimate

recycling is occurring.

10. Exemption for Other Solid Waste Incineration (OSWI) Units

Following publication of the December 23, 2011,

reconsideration proposal, we realized that the CISWI rule did

not contain any language to clarify overlap with another CAA

section 129 regulation applicable to OSWI units. The CISWI rule

already contains exemptions for MWCs, HMIWIs and SSIs, but

omitted similar language for OSWI units. Therefore, in this

final rule, we are providing language in 40 CFR 60.2020 and

60.2555 that clarifies that incineration units that are subject

to 40 CFR part 60 subparts EEEE or FFFF are exempt from the

CISWI rule.

D. Technical Corrections and Clarifications

We are also including some technical corrections and

clarifications in the final rule, as outlined below:

• Operating parameter limits during performance testing – While we believe it is intrinsic that established operating parameter limits do not apply during subsequent performance testing since they are being confirmed or reestablished during the subsequent testing, we provided language in the proposed rule in the NSPS to clarify that they are waived during performance testing (40 CFR 60.2145(c)). However, we inadvertently omitted this clarifying language in the

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emission guidelines so we have added clarifying language in the final emission guidelines at 40 CFR 60.2710(c).

• Bypass stacks on waste-burning kilns – While not included in the final rule text, we are clarifying here that the definition of “bypass stack” in today’s final rule does not have the same meaning as an “alkali bypass” used by some waste-burning kilns that manufacture Portland cement.

• Clarifying that, consistent with CAA section 129(f)(1), June 4, 2010, is the appropriate new source applicability date in 40 CFR 60.2015(a)(1).

• Revising the title of Table 2 to subpart DDDD to clarify that these emission limits apply to incinerators which are currently subject to CISWI emission limits promulgated in the 2000 CISWI rule.

• Clarifying that petitions for specific operating limits for control devices not listed in this subpart must be submitted to the Administrator at least 60 days before the performance test is scheduled to begin(40 CFR 60.2115 and 40 CFR 60.2680).

• Providing definitions of “30-day rolling average” and “responsible official” to clarify what is meant by these terms.

• Adding text to the provisions for PM monitoring provisions for ERUs to clarify that the 250 MMBtu/hr threshold is based upon the average annual heat input rate, consistent with how this threshold is applied in the industrial boiler NESHAP.

• Revising the affirmative defense text to clarify that these provisions apply to violations of standards and to further clarify the reporting requirements and criteria for sources seeking to assert an affirmative defense (40 CFR 60.2120 and 40 CFR 60.2685).

• Revising the recordkeeping provisions in 40 CFR 60.2175(v) and 40 CFR 60.2740(u) to reflect the categorical non-waste determination provisions of 40 CFR 241.4.

• Revising the electronic reporting provisions in 40 CFR 60.2235 and 40 CFR 60.2795 to clarify the timing and mechanism for submitting these reports and to be consistent with the electronic reporting language in more recent rulemakings.

• Revising the definition of “process change” to clarify the intended types of changes that would require re-testing.

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• Making corrections to the D/F calculation methodologies for

toxic equivalency basis and adding calculation methodology provisions for D/F TMB.

• Revising the definition of “space heater” to clarify applicability for units that meet the requirements of 40 CFR 279.

• Revising the emission limits for those pollutants for which data available from a similar source was determined to be better suited for calculating the new source limits. Notably, this is the case for NOX for waste-burning kilns, and for Hg and PCDD/PCDF for ERU-liquid/gas units. These revisions reflect updates made to emission limits of the selected similar sources.

E. Major Public Comments and Responses

We have included some of the major comment topics and our

responses below in the preamble. All other comments and

responses are provided in the “Reconsideration Response to

Public Comments Document” in the CISWI docket.

Solid-fuel ERU Subcategorization

Comment: Several commenters support the proposed separate

coal and biomass standards for D/Fs, CO, NOx , SO2, PM, Cd and

Pb. However, these commenters further urge the EPA to establish

separate standards for HCl and Hg for coal and biomass.

Commenters state that the EPA’s recognition that design and

operational differences between combustors designed to combust

coal and those designed to combust biomass is evidence to

support subcategorizing emission limits for all pollutants. One

commenter discussed differences in biomass and coal fuel rank,

and the significant boiler design differences in furnace height

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and volume that exist between units designed to combust

different fuel ranks of coal-fired boiler furnaces. As an

example, one commenter noted that a low-rank coal (high slagging

lignite) furnace can be 1.65 times the plan area, and 1.45 times

the furnace height, of a similar capacity furnace combusting a

high rank coal (medium volatile bituminous). The commenter

stated that this large difference exists even among varying

grades of coal, with biomass units being fuels of even lower

rank than lignite. Therefore, according to the commenter,

furnace area and height (and hence, volume) are significantly

different between ERUs designed to combust coal and those

designed for biomass combustion. The commenter highlighted an

analysis of their existing boilers to see the feasibility of

substituting biomass for coal. The commenter’s results indicated

that, due to fundamental design attributes of their coal-fired

units, they could only co-fire up to 20 percent biomass in the

units. The commenter explained that this limitation was due to

design issues pertaining to the unit being designed for coal,

such as superheater tube spacing, number and location of soot

blowers, fouling characteristics of biomass ash and the impact

the high moisture levels of biomass fuels have on fan capacity.

The commenter stated that these findings further support that

coal and biomass are not interchangeable within ERUs and

therefore supports subcategorizing emission limits between the

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two types of unit. The commenter also contended that the EPA

acknowledged significant design differences and their impacts on

Hg emissions during development of the Utility MACT Final Rule.

The commenter urges the EPA to take a similar approach in CISWI.

One commenter agreed with differentiation between coal-fired and

biomass ERUs but supported keeping solid-fuel ERUs together for

purposed of HCl and Hg emission limits. Another commenter argued

that all of the EPA’s subcategories are unlawful and arbitrary,

noting that their reasons for this belief were given in their

comments on the 2010 proposal.

Response: Based on our proposal and follow-up comments

summarized below, the EPA is finalizing separate limits for all

nine pollutants for biomass and coal ERUs. We agree with

comments concerning differences in moisture content between

biomass and coal-fired units. We reviewed data in the CISWI

database and see that the stack gas moisture content of coal-

fired ERUs is around 11.6 percent and is about 19.2 percent for

the biomass ERUs. We have considered the technical arguments

provided by commenters on CISWI ERUs, other technical

differences we have previously considered in our decision to

subcategorize ERUs and how these design differences impact

pollutant emission characteristics of the ERU. As a result, we

have determined that subcategorizing all nine pollutant emission

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limits between coal and biomass solid-fuel ERUs is appropriate

for the final CISWI rule.

One commenter supported the differentiation between coal

and biomass, but in keeping HCl and Hg limits together. However,

for the reasons given above, we have determined that all nine

pollutants should be subcategorized.

Contained Gaseous Material

Comment: Commenters support the EPA retaining the 2000

CISWI rule’s definition of “contained gaseous material.” Some

commenters believe that the EPA should expressly include the

definition of “contained gaseous material” in the amendatory

text to confirm that the definition is back in the CISWI rule.

Response: We believe that the commenters misunderstood what

the EPA proposed. Specifically, the basis of the

reconsideration proposal amendatory text was the 2000 CISWI rule

- not the 2011 CISWI rule - because the 2011 CISWI rule had not

been codified in the CFR pursuant to the Delay Notice.

Therefore, by not including the amendatory instruction to delete

the definition in the 2000 rule in the proposed reconsideration

rule, we proposed to retain the definition as contained in the

2000 CISWI rule. However, as explained above, due to the vacatur

of the Delay Notice, the 2011 CISWI rule is in effect and the

definition of contained gaseous material does not appear in that

rule. For that reason, we are including the definition of

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“contained gaseous material” found in the 2000 CISWI rule in

today’s final rule.

Comment: Many commenters who supported the EPA retaining

the 2000 CISWI rule’s definition of “contained gaseous material”

also urged the Agency to make clear that this definition should

apply when interpreting the term “solid waste” under RCRA.

Response: As aforementioned, the Agency is including the

definition of “contained gaseous material” found in the 2000

CISWI Rule in today’s final rule. Specifically, the definition

of “contained gaseous material” is codified today, consistent

with the 2000 CISWI Rule, as meaning, “gases that are in a

container when that container is combusted.”4

CAA section 129(g)(6) states that the definition of “solid

waste” shall have the meaning established by the Administrator

pursuant to RCRA. We agree that the definition of contained

gaseous materials in the final CISWI rule is consistent with the

interpretation of that term under RCRA for the purpose of

defining when non-hazardous secondary materials are solid wastes

when combusted in CISWI units.5 As discussed in more detail in

4 See 65 FR at 75359 and 75373. 5 Note that for the purposes of CISWI, contained gaseous materials are limited to gases in a container when that container is combusted. This limitation is due to the fact that CAA section 129 is focused exclusively on combustion of non-hazardous solid wastes. On the other hand, RCRA is focused on more than just combustion of non-hazardous solid wastes (e.g., treatment, storage, and disposal of hazardous and non-hazardous wastes); thus, this limitation is inapplicable to RCRA. We also note that the term 'container' as used in this definition is broader than the term as used in the hazardous waste

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the NHSM portion of the December 2011 reconsideration proposal

and in various letters issued by EPA,6 the NHSM rulemaking did

not change any previous EPA position as it relates to whether

``contained gaseous material'' is a solid waste under RCRA."7

We note, however, that although gases must be “contained”

to be solid wastes under RCRA, EPA maintains separate and

independent authority under RCRA to regulate certain types of

uncontained gases whether or not they themselves are solid

wastes (e.g., gases emitted from the management of hazardous

waste).8

regulations (see 40 CFR 260.10, definition of container). Specifically, the term here is not limited to a portable device, but also includes stationary containers. We believe that these interpretations under the CAA and RCRA are consistent. 6 For example, see June 25, 2012 letter from Assistant Administrator Mathy Stanislaus to Paul Noe. A copy of this letter has been placed in the docket for today’s rulemaking. 7 See 76 FR at 80472-80473. 8 RCRA section 3002(a) directs EPA to establish standards for hazardous waste generators and RCRA section 3004(a) directs EPA to establish performance standards for all facilities that treat, store or dispose of hazardous waste. Both of these provisions grant authority to control gaseous emissions from hazardous waste management as may be necessary to protect human health and the environment. RCRA sections 3004(n), and (o)(1)(B), further direct EPA to regulate air emissions from, respectively, hazardous waste treatment, storage and disposal facilities; and hazardous waste incinerators. The authority provided in RCRA section 3004(q) to regulate fuel produced from hazardous waste also encompasses gaseous fuels (when they are produced from hazardous wastes).The authority provided in RCRA section 3004(u) to control “releases” of hazardous constituents from solid waste management units at a facility seeking a RCRA permit also encompasses gaseous releases (when the gases are hazardous constituents). The authority granted under these sections of the statute is independent of EPA’s authorities over solid waste. As an example, EPA has authority to regulate emissions generated during treatment of hazardous waste, including volatilization and incineration of hazardous waste.

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Comment: Some commenters also requested that EPA clarify

that landfill gas is not considered to be a “contained gaseous

material” and/or a “solid waste” under RCRA.

Response: We agree with commenters that landfill gases

must be in a container when that container is combusted to be

considered “contained gaseous material” under today’s final

CISWI regulations.

However, given that landfill gas is emitted from solid

waste (i.e., non-hazardous solid waste landfills or municipal

waste landfills), EPA has distinct and independent authority

under RCRA to regulate this material as part of our authority to

regulate solid waste landfills (for example, in order to address

the risk of explosions posed by methane emissions per 40 CFR

258.23).9

Oxygen Correction During Startup and Shutdown

Comment: Commenters generally support allowing the use of

uncorrected CEMS data during startup and shutdown. Several

9 RCRA Subtitle D gives EPA authority to set standards for non-hazardous waste disposal facilities, including standards for air emissions. For example, EPA’s criteria for municipal solid waste landfills, established pursuant to RCRA sections 1008(a)(3), 2002, 4004(a), and 4010(c), generally address air quality by prohibiting the open burning of waste and by setting limits on the concentration of explosive gases (i.e., methane). See also March 6, 1986 Letter from Marcia E. Williams to Mr. H. Lanier Hickman, Jr., which states, “[W]e believe it is clear that the U.S. Environmental Protection Agency (EPA) has the authority under both Sections 3004(n) and 4004(a) of RCRA, as well as the CAA, to regulate gaseous emissions from hazardous and non-hazardous waste landfills.”

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commenters are concerned that the 4‐ hour startup and a 1-hour

shutdown period (derived from a single coal fired unit) are not

sufficient for all the CISWI unit types and technologies. Other

commenters believe there should be no time limitations on

shutdown and startups. One commenter, however, believes the

proposed time limit is appropriate. Some commenters recommend

using the Boiler MACT rule approach using load to define when

the O2 corrections do not apply.

Commenters also urge the EPA to eliminate the O2 correction

for all CEM-measured emission limits, not just CO, during

startup and shutdown periods. Commenters also support making

this allowance available to all types of CISWI unit, not only

ERUs.

Response: In today’s final rule, we are retaining the

provision that allows sources to use uncorrected CO CEMS data

during periods of startup and shutdown. Based on comments and

the technical justifications for allowing the use of uncorrected

CEMS data identified during the comment period, we are expanding

this provision to any pollutant for which continuous compliance

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is being determined using CEMS as explained above in “Section

II.C: Summary of Significant Changes Since Proposal.”

Particulate Matter Continuous Monitoring Provisions for Large

ERUs and Waste-burning Kilns

Comment: Several commenters supported the EPA’s proposal to

remove requirements for PM CEMS (using PS-11) for continuous

compliance for large ERUs and waste-burning kilns, stating that

PM CEMS usefulness and application issues of these monitors are

uncertain. Commenters asserted that, for biomass ERUs and

sources with low PM concentration, PM CEMS were not adequate to

accurately monitor low PM concentrations. Commenters further

contended that PM CPMS are essentially the same thing as PM

CEMS, and that there were no clear instructions on how to

“certify” PM CPMS, as was required in the proposed rule.

Commenters added that they do not understand how the recording

of hourly and 30-day rolling averages of the output from these

monitors will be useful to demonstrate performance or evaluate

compliance with a PM limit. One commenter suggested that the EPA

remove the PM CPMS requirements altogether for all industrial

boilers.

Response: We are revising the PM CEMS requirements in the

final rule as explained above.

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In responding to this comment specifically, we believe it

is useful to review the procedures and acceptance criteria of

PS-11, the protocol mandated by the 2011 final CISWI rule.

Performance Specification-11

PS-11 is structured differently than other PSs that apply

to validating the performance of gaseous pollutant CEMS. This is

primarily because the pollutant, PM, is defined entirely by the

test method specified by regulation to measure it. As the

industry commenters note, there are no independent standard

reference materials for PM concentrations as there are for

gaseous pollutants (e.g., NIST traceable compressed gases for

validating SO2 or NO

X instrumental measurements). The only

reference standard for determining the PM concentration in an

air or stack gas sample is the reference test method. In the

case of the CISWI final rule, the rule specifies EPA Method 5

for measuring filterable PM concentration (e.g., in mg/dscm).

Performance Specification 11 provides procedures and

acceptance criteria for validating the performance of several

types of PM CEMS technologies. Although there are multiple

instrument and data reporting operational performance checks in

PS-11 that are similar in concept to those for gaseous pollutant

CEMS, there is a principal PM CEMS performance requirement that

is distinctly different. That difference is the development of a

site-specific PM CEMS correlation or mathematical response

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curve. There are two key procedural elements to developing that

correlation. First, PS-11 requires that the source conduct stack

test runs using an EPA PM test method (e.g., Method 5) and

simultaneously collect corresponding PM CEMS output data.

Second, the source must vary the operation of the control device

manually in order to produce a range of PM concentrations.

Performance Specification 11, section 8.6, requires at least

five test runs at each of three different operating conditions

(i.e., low, mid and high PM concentrations) for a total of 15 or

more test runs that range from 25 to 100 percent of allowable

emissions. Then the source must use the test method data and the

corresponding PM CEMS output data to develop an equation (i.e.,

a calculated linear or nonlinear curve) that will be used to

define the relationship between the PM CEMS output and the test

method measured PM concentrations. Each site-specific

correlation must meet several PS-11 acceptance criteria

including limits on confidence interval and tolerance interval

equating to ±25 percent of the applicable emissions limit.

Discussion of Technical Issues

In prior comments submitted to the EPA on the PM CEMS

requirements for waste-burning kilns, one issue raised about

conducting the testing to meet the PS-11 correlation development

requirement is the impracticality of varying the emissions from

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a FF control device. Many CISWI units subject to the standards

use FF control devices.

We agree with commenters that there are typically few, if

any, physical adjustments one can apply to a FF or to the waste-

burning kiln process to change the outlet PM concentration

significantly. A FF produces essentially a constant outlet

concentration even with changes to the inlet loading or flow

(http://www.epa.gov/ttnchie1/mkb/documents/ff-pulse.pdf).

Although PS-11 allows some flexibility when control device

perturbations are not possible, the resulting correlation would

apply for only the narrow range of concentrations measured

during the testing. The result would be that the PM CEMS would

be correlated only for a relatively small range of conditions

below the applicable compliance limit. This range would not

necessarily include situations where the standard might be

exceeded. Without the ability to calculate emissions should the

FF performance change from initial test conditions (e.g., bag

leaks begin to develop), such a limited correlation range would

render the PM CEMS less reliable for calculating long term

average concentrations or emissions rates and for verifying

compliance. Additionally, it is difficult and resource intensive

to modify baghouse control efficiency in a way that is

representative of normal operations at a waste-burning kiln.

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Commenters also cited problems in developing correlations

in stack gases with variable PM constituents and physical

characteristics when using light scatter or scintillation

detection PM CEMS devices. As noted above and in the EPA’s

technology background documents (e.g.,

http://www.epa.gov/ttn/emc/cem/pmcemsknowfinalrep.pdf and

http://www.epa.gov/ttn/emc/cem/r4703-02-07.pdf), the

correlations developed for these types of instruments are

inherently dependent on the particle structure, size and other

physical characteristics as well as PM mass in the exhaust gases

for each site. Put another way, these light-based PM CEMS

produce a signal that can vary when different fuels or raw

materials are introduced to the kilns or ERU even when the FF

outlet mass concentration remains unchanged.

To the extent that physical characteristics of the PM in

the stack remain stable, correlations for light-based PM CEMS

meeting PS-11 performance criteria can represent mass rates to

the degree of accuracy required by PS-11. For example, there are

various design structures used in some light-based PM CEMS

devices that can mitigate the effects of changes in the physical

aspects of particles on measurement uncertainty. In addition to

the type of light effect measured (e.g., Rayleigh or Mie

scattering or light scintillation), the detector wavelength and

the frequency are design factors that will affect how the PM

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CEMS responds to small changes in the physical appearance of the

PM.

On this point, we note that if a source owner were

concerned about the ability of a light-based PM CEMS to meet the

requirements of PS-11 because of variable physical

characteristics of particles in the stack, there is at least one

other PM CEMS technology based more directly on mass measurement

rather than on light scatter or light scintillation

characteristics. The currently available Beta gauge technology

does not suffer from this particular technical problem. The Beta

attenuation PM CEMS, also called Beta gauge, extracts a sample

for the stack gas and collects the PM on a filter tape. The

device periodically advances the tape from the sampling mode to

an area where the sample is exposed to Beta radiation. The

detector measures the amount of Beta emitted by the sample and

that amount can be directly related to the mass of PM on the

filter. The Beta gauge sensitivity or detection limit can be

enhanced (i.e., lowered) with greater sample volumes produced

from sampling intervals up to an hour or longer.

Another PM mass detector projected for greater use as PM

CEMS is the TEOM. Often used in measuring ambient levels of PM,

the TEOM operates on a basic principle that can be made

traceable to NIST laboratory standards. The TEOM can provide a

continuous measure of PM mass in a sample extracted from the

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stack and routed to the detector. Tapered element oscillating

microbalance based PM CEMS are not yet commercially available.

Commenters identified another factor contributing to the

difficulty of meeting PS-11 correlation requirements for low PM

concentrations corresponding to a low applicable emissions

limit, as with the promulgated PM standards here for waste-

burning kilns and biomass ERUs. We have recently reevaluated the

capabilities of the EPA Method 5 for measuring low

concentrations of PM (See the memo “Revision of Estimated Method

5 Detection Limit” in the CISWI docket) and have determined a

Method 5 method detection limit of approximately 2 mg/dscm for a

1-hour test run. The uncertainty of a measurement with Method 5

at this PM concentration would be from 50 to 100 percent (i.e.,

±1 to 2 mg/dscm). We can determine a PQL using ~3 x method

detection limit to reduce that Method 5 measurement uncertainty

to ±10 to 20 percent. That means that the PQL for a 1-hour test

run with Method 5 would be approximately 6 mg/dscm ±0.6 to 1.2

mg/dscm.

The CISWI PM emissions limit for existing waste-burning

kiln sources is 3.6 mg/dscm, and is 11 mg/dscm for biomass ERUs.

The new source limits are the same for waste-burning kilns but

are 5.1 mg/dscm for biomass ERUs. As noted above, PS-11

specifies acceptable criteria for a correlation directly related

to the applicable emissions limit. For a PM CEMS set up to

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measure compliance with a 3.6 mg/dscm limit, the inherent

uncertainty associated with a 1-hour Method 5 measurement (±0.6

to 1.2 mg/dscm) would constitute more than half of the ±25

percent of the applicable PS-11 acceptance threshold (i.e., ±0.9

mg/dscm) of the mid-level PS-11 correlation test (i.e., the

correlation for the middle of the three PS-11 correlation

points). Factoring in the inherent PM CEMS response variability

and the uncertainty associated with the representative sampling

(e.g., PM and flow stratification), we agree with commenters

that trying to satisfy PS-11 at such low concentrations using 1-

hour Method 5 test runs would be problematic. This drawback

applies regardless of the type of PM CEMS technology used.

As commenters to the Portland Cement NESHAP have noted, one

can improve the method detection capabilities of the Method 5 or

other filterable PM test method by increasing sampling volume

and run time. For example, a test run time of about 2 hours will

improve the Method 5 PQL to about 3 mg/dscm. The measurement

uncertainty associated with a 2-hour test run at 3 mg/dscm would

be about ±0.3 to 0.6 mg/dscm. At this level, the uncertainty

associated with the PM test method measurements alone would be

about half of the correlation limit allowed in PS-11. To achieve

a PQL of 1 mg/dscm and a measurement uncertainty of about ±0.01

to 0.2 mg/dscm, one would need to conduct a test run of 6 hours

or longer. As noted above, the PS-11 correlation calculations

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would also have to account for any PM CEMS analytical and

measurement variability.

Using data from longer Method 5 test runs will improve the

probability of a PM CEMS meeting PS-11 correlation requirements

but, as commenters note, will also raise practicality concerns

without completely resolving the issue. For example, the time to

complete 15 1-hour test runs under three different emissions

conditions may be 3 to 6 days of field work, while the time to

complete 15 6-hour test runs under three different emissions

conditions will require at least 2 weeks of field work in order

to produce and maintain the operating conditions associated with

three different emissions rates. Longer test runs lower the

variability of Method 5 PM measurements at near detection limit

levels from ± 50 percent to below ± 25 percent; however, the

variability of Method 5 results at these low levels represents a

significantly larger portion of the ± 25 percent correlation

requirement of PS-11 than would Method 5 data collected at

higher PM concentrations. Method 5 measurement uncertainty

becomes increasingly greater with lowering PM concentration and

thus reference measurement variability hinders the PS-11

correlation process the most for the best performing sources.

Thus, the ultimate result might still lack certainty and would

also pose the most difficulty and uncertainty to those sources

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with lower PM concentrations (potentially disadvantaging more

efficient operators).

Although longer Method 5 test runs and longer beta gauge

sampling times reduce difficulties with PS-11 correlation for a

PM CEMS, the EPA believes that this correlation will not be

technically achievable for a significant number of waste-burning

kiln and biomass ERU sources, a result in part due to the Method

5 PM emissions measurement variability at the low concentrations

necessary to maintain compliance with the standard. The PM CEMS

correlations then become approximations more qualitative than

quantitative with high levels of uncertainty at low

concentrations (i.e., the correlations do not meet PS-11

requirements). This characteristic exists regardless of the type

of PM CEMS technology used by the source since it involves

variability not only of the PM CEMS but also the Method 5 test

data, variability of raw material and additive feeds to the

waste-burning kiln, and the changing particle sizes, shapes, and

density with process operations (e.g., mill on versus mill off,

type of fuel being used in the ERU).

Making PM CEMS work at low concentrations (<10 mg/dscm) at

waste-burning kiln and biomass ERU sources is not impossible;

although, to expect that correlations would be achievable at all

low emissions sources would be unrealistic. Additionally, the

technical limitations do not mean that PM CEMS cannot be used to

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monitor for compliance. A PM CEMS that does not meet the EPA

correlation requirements can still produce data indicative of

trends and changes in emissions control. Particulate Matter CEMS

technology can be effective in monitoring control device

performance (see, e.g., 77 FR 9371 (February 16, 2012)) where

the EPA established PM CPMS parametric operating limits for

electric utility steam generating units.

A monitoring approach alternative to PM CEMS and PS-11

To address technical issues associated with PM CEMS meeting

PS-11 correlation requirements at low PM emissions

concentrations from waste-burning kilns and biomass ERUs, the

impracticability in perturbing FF emission rates to establish PS

11 correlation curves, and the potentially variable PM emissions

characteristics expected from waste-burning kilns, the EPA is

finalizing the change of the compliance basis for the PM

emissions limit from PM CEMS. For monitoring continuous

compliance, the rule requires PM CEMS equipment but, as

explained below, that equipment would be used for continuous

parametric monitoring rather than for direct measure of

compliance with the numerical PM emissions limit.

Specifically, this final rule recognizes the value of PM

monitoring technology sensitive to changes in PM emissions

concentrations and use of such a tool to assure continued good

operation of PM control equipment. This approach avoids the PM

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CEMS calibration (i.e., PS-11 correlation). Therefore, the EPA

is including provisions that a site-specific parametric

operating limit be established during the performance test, that

there be continuous monitoring of that parametric limit using a

PM CPMS, that an exceedance of that site-specific operating

limit be reported as a deviation and trigger immediate

corrective action and a Method 5 performance test within 45

days.

In the May 2012 Proposed National Emission Standards for

Hazardous Air Pollutants for the Portland Cement Manufacturing

Industry and Standards of Performance for Portland Cement Plants

The EPA proposed the use of PM CPMS for continuous monitoring of

PM emissions as a 30-day rolling average established by

identifying the average PM CPMS response corresponding to the

highest 1-hour PM compliance test. Failure to meet this 30-day

rolling average would result in retesting. Industry commented

that this requirement would trigger unnecessary retests for many

facilities, especially for cleaner sources. This is a legitimate

issue. To avoid a perverse result, the EPA is modifying the way

PM CPMS operating limits are established. Sources whose

compliance with the PM emission standard are shown to be 75

percent or below the emission limit in the PM method 5

compliance test will set their PM parametric operating limit to

be a 30-day rolling average equivalent to that 75 percent level.

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Sources whose compliance with the PM emission standard are above

75 percent of the emission limit will establish their operating

limit as a 30-day rolling average equal to the average PM CPMS

values recorded during the PM compliance test. It should be

noted that this provision does not affect the actual emission

limit that must be met.

F. What other actions are we taking?

In this final action, we are denying requests for

reconsideration on all issues contained in the petitioners’

requests for reconsideration that we did not include in the

December 23, 2011, proposed rule. The issues for which we are

denying reconsideration failed to meet the standard for

reconsideration under CAA section 307(d)(7)(B) and we determined

that reconsideration was not otherwise appropriate.

Specifically, on these issues, the petitioner has failed to show

the following: that it was impracticable to raise their

objections during the comment period; or that the grounds for

their objections arose after the close of the comment period;

and/or that their concern is of central relevance to the outcome

of the rules. We have concluded that no clarifications to the

underlying rules are warranted for the 19 remaining petitioners’

issues for the reasons set forth in the memorandum titled

“Denied CISWI Petition Issues” found in the CISWI docket. The

following issues are addressed in that memorandum.

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• Work practice standards should be used for

startup/shutdowns and malfunctions.

• Exempt or revise limits for units combusting de minimis amounts of waste.

• Clarify applicability of CISWI standards to marine vessel units or units located on the outer continental shelf.

• Clarify applicability to temporary or portable units.

• Reduce performance testing requirements to be more consistent with requirements of other rules.

• Reconsider elimination of provisions that allow missing CEMS data.

• Do not include emissions data for combination boiler units.

• CISWI does not satisfy CAA 112(c)(6) requirements for POM and PCB.

• MACT floor statistical approach concerns.

• MACT floor must reflect the average, the UPL is not the same as the average emission level.

• MACT floor pollutant-by-pollutant approach concerns.

• Non-detect methodology is unlawful.

• Beyond-the-floor analysis is unlawful and arbitrary.

• Compliance cost and wildlife concerns for small remote incinerators.

• “Refinery gas” definition should be included in the CISWI rule.

• Clarify that construction and demolition wood is not a solid waste.

G. What are the impacts associated with the amendments?

1. What are the primary air impacts?

We have estimated the potential emissions reductions from

existing sources that may be achieved through implementation of

the emission limits. However, we realize that some CISWI owners

and operators are likely to determine that alternatives to waste

incineration are viable, such as further waste segregation or

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sending the waste to a landfill or MWC, if available. In fact,

sources operating incinerators, where energy recovery is not a

goal, may find it cost effective to discontinue use of their

CISWI unit altogether. Therefore, we have estimated emissions

reductions attributable to existing sources complying with the

limits, as well as those reductions that would occur if the

facilities with incinerators and small, remote incinerators

decide to discontinue the use of their CISWI unit and use

alternative waste disposal options.

For units combusting wastes for energy production, such as

ERUs and waste-burning kilns, the decision to combust or not to

combust waste will depend on several factors. One factor is the

cost to replace the energy provided by the waste material with a

traditional fuel, such as natural gas. Another factor would be

whether the owner or operator is purchasing the waste or

obtaining it at no cost from other generators, or if they are

generating the waste on-site and will have to dispose of the

materials in another fashion, such as landfills. Lastly, these

units would have to compare the control requirements needed to

meet the CISWI emission limits with those needed if they stop

burning solid waste and are then subject to a NESHAP instead. As

mentioned before, we have attempted to align the monitoring

requirements for similar non-waste-burning sources as closely as

possible in an effort to make them consistent and to help

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sources make the cross-walk between waste and non-waste

regulatory requirements as simple as possible.

The emissions reductions that would be achieved under this

final rule using the definition of solid waste under RCRA and

the proposed CISWI emission limits are presented in Table 5 of

this preamble.

Table 5. Emissions Reductions for MACT Compliance and Alternative Disposal Options for Existing CISWI Using the Emission Limits

Pollutant

Reductions achieved through meeting MACT (ton/yr)

Reductions achieved assuming incinerators and

small, remote incinerators use

alternative disposal

(ton/yr)a HCl 772.2 784.3 CO 20,093 20,058 Pb 2.5 2.71 Cd 1.807 1.809 Hg 0.341 0.344 PM (filterable) 2,397 2,401 dioxin, furans 0.000062 0.000064 NOx 5,292 5,399 SO2 6,211 6,262 Total 34,771 34,909 a The estimated emission reduction does not account for any secondary impacts associated with alternate disposal of diverted ERU fuel.

The EPA expects that many existing CISWI owners and

operators may find that alternate disposal options are

preferable to complying with the standards for the incinerator

and small, remote incinerator subcategories. Our experience with

regulations for MWC, HMIWI and, in fact, CISWI, has shown that

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negative growth in the source category historically occurs upon

implementation of CAA section 129 standards. Since CISWI rules

were promulgated in 2000 and have been in effect for existing

sources since 2005, many existing units have closed. At

promulgation in 2000, the EPA estimated 122 units in the CISWI

population. In comparison, the incinerator subcategory in this

rule, which contains any such units subject to the 2000 CISWI

rule, has 27 units. The EPA is not aware of any construction of

new units since 2000 so we do not believe there are any units

that are currently subject to the 2000 CISWI NSPS. The revised

CISWI rule is more stringent so we expect this trend to

continue. However, the EPA does recognize that some facilities

may opt to replace aging incinerator units with new units where

it is cost effective or alternative disposal options are not

feasible, as may be the case with some incinerators, or in very

remote locations. We estimate that there could be one new

incineration unit within the next 5 years following this final

rule, and possibly five new small remote incinerators within

that time. In these cases, we have developed model CISWI unit

emissions reduction estimates for these subcategories using the

current existing unit baseline, based on average emission

concentration values and sizes from our current inventory and

the new source emission limits. Table 6 of this preamble

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presents the model plant emissions reductions that are expected

for new sources.

Table 6. Emissions Reductions on a Model Plant Basis

Emission reduction for CISWI Subcategory Model Units (tpy unless otherwise noted)

Pollutant Incinerator Small, remote incinerator

HCl 2.62 0.0 CO 0.0 0.25 Pb 0.55 0.11 Cd 0.15 0.019 Hg 0.0026 0.00036 PM (filterable)

103 10.7

D/F (total

mass)a

0.0011 0.0

NOx 11.3 0.0

SO2 5.1 4.5

Total 122 22.0 a D/F estimates are given in lb/yr.

We do not anticipate that any new energy recovery or waste-

burning kiln units will be constructed and will instead use

alternative waste disposal methods or alternative fuels that

will not subject them to the CISWI rule. For example, whole

tires obtained from approved tire management programs and tire-

derived fuel from which the metal has been removed is not

considered solid waste under the definition of solid waste.

Consequently, new cement kiln owners will assess their

regulatory requirements under CISWI for burning whole tires or

tire-derived fuel that does not have metals removed against the

costs associated with removing the metal or obtaining tires from

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an approved source and complying with the applicable NESHAP

instead of the CISWI rule. Our research suggests that metal

removal is routinely practiced and that several state waste tire

management programs are already in place and would most likely

be a viable option for new kiln owners so that they would not be

subject to the CISWI regulations. Indeed, we expect that all

existing cement kilns that are classified as being waste-burning

solely due to whole tires will, by the effective date for the

CISWI standards, find a way to obtain their tires through an

approved tire management plan. Likewise, new sources could

engineer their process to minimize waste generation in the first

place or to separate wastes so that the materials sent to a

combustion unit would not meet the definition of solid waste to

begin with. For waste that is generated, our cost analyses have

found that alternative waste disposal is generally available and

less expensive.

2. What are the water and solid waste impacts?

In our analysis, we have selected the lowest cost

alternative (i.e., compliance or alternative disposal) for each

facility. We anticipate affected sources will need to apply

additional controls to meet the emission limits. These controls

may use water, such as wet scrubbers, which would need to be

treated. We estimate an annual requirement of 71 billion gallons

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per year of additional water would be required as a result of

operating additional controls or increased sorbent use.

Likewise, the addition of PM controls or improvements to

controls already in place will increase the amount of

particulate collected that will require disposal. Furthermore,

ACI may be used by some sources, which will result in additional

solid waste needing disposal. The annual amounts of solid waste

that would require disposal are anticipated to be approximately

25,400 tpy from PM capture and 13,700 tpy from ACI.

Perhaps the largest impact on solid waste would come from

owners and operators who decide to discontinue the use of their

CISWI unit and instead send waste to the landfill or MWC for

disposal. Based on tipping fees and availability, we would

expect most, if not all, of this diverted waste to be sent to a

local landfill. As we discuss above, it may be that a good

portion of the incinerators would determine that alternative

disposal is a better choice than compliance with the standards.

We estimate that approximately 110,600 tpy of waste would be

diverted to a landfill.

For new CISWI units, we estimate an annual requirement of

980,000 gallons per year of additional water would be required

as a result of operating additional controls. The annual amounts

of solid waste that would require disposal are anticipated to be

approximately 6.8 tpy from PM capture and 4.7 tpy from ACI.

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3. What are the energy impacts?

The energy impacts associated with meeting the emission

limits would consist primarily of additional electricity needs

to run added or improved air pollution control devices. For

example, increased scrubber pump horsepower may cause slight

increases in electricity consumption and sorbent injection

controls would likewise require electricity to power pumps and

motors. In our analysis, we have selected the lowest cost

alternative (i.e., compliance or alternative disposal) for each

facility. By our estimate, we anticipate that an additional

217,400 MW-hours per year would be required for the additional

and improved control devices.

As discussed earlier, there could be instances where owners

and operators of ERUs and waste-burning kilns decide to cease

burning waste materials. In these cases, the energy provided by

the burning of waste would need to be replaced with a

traditional fuel, such as natural gas. Assuming an estimate that

50 percent of the energy input to ERUs and kilns are from waste

materials, an estimate of the energy that would be replaced with

a traditional fuel if all existing units stopped burning waste

materials, is approximately 56 TBtu/yr.

For new CISWI units, we anticipate that 94 MW-hours per

year would be required for additional and improved control

devices. Since we do not anticipate any new energy recovery or

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waste-burning kiln units to be constructed, there would be no

additional estimate for energy that would be replaced with a

traditional fuel.

4. What are the secondary air impacts?

For CISWI units adding controls to meet the emission

limits, we anticipate minor secondary air impacts. The

combustion of fuel needed to generate additional electricity and

to operate RTO controls would yield slight increases in

emissions, including NOx, CO, PM and SO2 and an increase in CO2

emissions. Since NOx and SO2 are covered by capped emissions

trading programs, and methodological limitations prevent us from

quantifying the change in CO and PM, we do not estimate an

increase in secondary air impacts for this rule from additional

electricity demand.

We believe it likely that the incinerators may elect to

discontinue the use of their CISWI unit and send the waste to

the landfill or other disposal means. As we discussed in the

solid waste impacts above, this could result in approximately

110,600 tpy of waste going to landfills. By using the EPA’s

Landfill Gas Estimation Model, we estimate that, over the 20-

year expected life of a CISWI unit, the resulting methane

generated by a landfill receiving the waste would be about

96,400 tons. If this landfill gas were combusted in a flare,

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assuming typical flare emission factors and landfill gas

chlorine, Hg and sulfur concentrations, the following emissions

would be expected: 20 tons of PM; 8 tons of HCl; 16 tons of SO2;

890 tons of CO; 46 tons of NOx; and 1.4 lbs of Hg.

Similar to existing units, we anticipate minor secondary

air impacts for new CISWI units adding controls as discussed

above.

5. What are the cost and economic impacts?

We have estimated compliance costs for all existing units

to add the necessary controls and monitoring equipment, and to

implement the inspections, recordkeeping and reporting

requirements to comply with the final CISWI standards. We have

also analyzed the costs of alternative disposal for the

subcategories that may have alternative options to burning

waste, specifically for the incinerators and the small, remote

incinerators that may have an alternative to incineration. In

our analysis, we have selected the lowest cost alternative

(i.e., compliance or alternative disposal) for each facility.

Based on this analysis, we anticipate an overall total capital

investment of $816 million with an associated total annual cost

of $271 million ($2008). For comparison, the 2011 final rule,

estimated an overall total capital investment of $652 million

with an associated total annual cost of $232 million ($2008).

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The annualized cost of today’s final rule are approximately 17%

higher than those of the final 2011 CISWI rule. The changes in

cost result from revising the inventories of the ERUs, waste-

burning kilns, and small remote incinerators as discussed in

Section II.C. of this preamble: “Summary of Significant Changes

Since Proposal.”

Under the rule, the EPA’s economic model suggests the

average national market-level variables (prices, production-

levels, consumption, international trade) will not change

significantly (e.g., are less than 0.001 percent).

The EPA performed a screening analysis for impacts on small

entities by comparing compliance costs to sales/revenues (e.g.,

sales and revenue tests). The EPA’s analysis found the tests

were below 3 percent for four of the five small entities

included in the screening analysis.

In addition to estimating this rule’s social costs and

benefits, the EPA has estimated the employment impacts of the

final rule. We expect that the rule’s direct impact on

employment will be small. For the reconsideration final, the

estimated employment changes range between −400 to +900

employees, with a central estimate of +200.

We have not quantified the rule’s indirect or induced

impacts. For further explanation and discussion of our analysis,

see the introductory memo and Section 3 of the RIA.

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For new CISWI units, we have estimated compliance costs for

units coming online in the next 5 years. This analysis is based

on the assumption that one new incinerator will come online over

5 years and that three new small remote incinerators will come

online in the next year, followed by one new small remote

incinerator per year for subsequent years. Additionally, it was

assumed that each model unit will add the necessary controls,

monitoring equipment, inspections, recordkeeping and reporting

requirements to comply with NSPS limits. Based on our analysis,

we anticipate an overall total capital investment of $9.3

million over 5 years with an associated total annual cost (for

2015) of $2.7 million.

6. What are the benefits?

We estimate the monetized benefits of this regulatory action

to be $420 million to $1.0 billion (2008$), 3 percent discount

rate) in the implementation year (2015). The monetized benefits

of the regulatory action at a 7 percent discount rate are $380

million to $930 million (2008$). Using alternate relationships

between PM2.5 and premature mortality supplied by experts,

higher and lower benefits estimates are plausible but most of

the expert-based estimates fall between these two estimates.10

10 Roman, et al., 2008. Expert Judgment Assessment of the Mortality Impact of Changes in Ambient Fine Particulate Matter in the U.S. Environ. Sci. Technol., 42, 7, 2268 – 2274.

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Since the reconsideration proposal, we have made several updates

to the approach we use to estimate mortality and morbidity

benefits in the PM NAAQS RIAs (U.S. EPA, 2012a,b)11,12, including

updated epidemiology studies, health endpoints, and population

data. Although we have not re-estimated the benefits for this

rule to apply this new approach, these updates generally offset

each other, and we anticipate that the rounded benefits

estimated for this rule are unlikely to be different than those

provided below. More information on these updates can be found

in the PM NAAQS RIAs .A summary of the monetized benefits

estimates at discount rates of 3 percent and 7 percent is in

Table 7 of this preamble.

Table 7. Summary of the Monetized Benefits Estimates For the

CISWI NSPS and EG in 2015 (Millions of 2008$)a,b

Pollutant Estimated Emission Reductions (tpy)

Total Monetized Benefits (3% Discount Rate)


PM2.5 917 $210 to $510 $190 to $460 PM2.5 Precursors

SO2 6,262 $180 to $450 $170 to $410 NOx 5,399 $26 to $64 $24 to $58

11 U.S. Environmental Protection Agency (U.S. EPA). 2012a. Regulatory Impact Analysis for the Proposed Revisions to the National Ambient Air Quality Standards for Particulate Matter. EPA-452/R-12-003. Office of Air Quality Planning and Standards, Health and Environmental Impacts Division. June. Available at http://www.epa.gov/ttnecas1/regdata/RIAs/PMRIACombinedFile_Bookmarked.pdf.

12 U.S. Environmental Protection Agency (U.S. EPA). 2012b. Regulatory Impact Analysis for the Final Revisions to the National Ambient Air Quality Standards for Particulate Matter. EPA-452/R-12-003. Office of Air Quality Planning and Standards, Health and Environmental Impacts Division. December. Available at http://www.epa.gov/pm/2012/finalria.pdf.

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Pollutant Estimated Emission Reductions (tpy)



Total $420 to $1,000 $380 to $930 a All estimates are for the implementation year (2015) and are rounded to two significant figures so numbers may not sum across rows. All fine particles are assumed to have equivalent health effects but the benefit-per-ton estimates vary between precursors because each ton of precursor reduced has a different propensity to form PM

2.5. Benefits from reducing HAP are not

included.

These benefits estimates represent the total monetized

human health benefits for populations exposed to less PM2.5 in

2015 from controls installed to reduce air pollutants in order

to meet these standards. To estimate human health benefits of

this rule, the EPA used benefit-per-ton factors to quantify the

changes in PM2.5-related health impacts and monetized benefits

based on changes in SO2 and NOx emissions. These estimates are

calculated as the sum of the monetized value of avoided

premature mortality and morbidity associated with reducing a ton

of PM2.5 and PM2.5 precursor emissions. To estimate human health

benefits derived from reducing PM2.5 and PM2.5 precursor

emissions, we used the general approach and methodology laid out

in Fann, Fulcher, and Hubbell (2009).13

To generate the benefit-per-ton estimates, we used a model

to convert emissions of direct PM2.5 and PM2.5 precursors into

13 Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. “The influence of location, source, and emission type in estimates of the human health benefits of reducing a ton of air pollution.” Air Qual Atmos Health (2009) 2:169–176.

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changes in ambient PM2.5 levels and another model to estimate

the changes in human health associated with that change in air

quality. Finally, the monetized health benefits were divided by

the emission reductions to create the benefit-per-ton estimates.

These models assume that all fine particles, regardless of

their chemical composition, are equally potent in causing

premature mortality because the scientific evidence is not yet

sufficient to support the development of differential effects

estimates by particle type. Directly emitted PM2.5, SO2 and NOx

are the primary precursors affected by this rule. Even though we

assume that all fine particles have equivalent health effects,

the benefit-per-ton estimates vary between precursors depending

on the location and magnitude of their impact on PM2.5

levels,

which drive population exposure. For example, SO2 has a lower

benefit-per-ton estimate than direct PM2.5

because it does not

form as much PM2.5, thus, the exposure would be lower and the

monetized health benefits would be lower.

It is important to note that the magnitude of the PM2.5

benefits is largely driven by the concentration response

function for premature mortality. Experts have advised the EPA

to consider a variety of assumptions, including estimates based

on both empirical (epidemiological) studies and judgments

elicited from scientific experts, to characterize the

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uncertainty in the relationship between PM2.5 concentrations and

premature mortality. For this rule, we cite two key empirical

studies, the American Cancer Society cohort study14 and the

extended Six Cities cohort study.15 In the RIA for this rule,

which is available in the docket, we also include benefits

estimates derived from expert judgments and other assumptions.

The EPA strives to use the best available science to

support our benefits analyses. We recognize that interpretation

of the science regarding air pollution and health is dynamic and

evolving. After reviewing the scientific literature and recent

scientific advice, we have determined that the no-threshold

model is the most appropriate model for assessing the mortality

benefits associated with reducing PM2.5 exposure. Consistent

with this recent advice, we are replacing the previous threshold

sensitivity analysis with a new LML assessment. While a LML

assessment provides some insight into the level of uncertainty

in the estimated PM mortality benefits, the EPA does not view

the LML as a threshold and continues to quantify PM-related

mortality impacts using a full range of modeled air quality

concentrations.

14 Pope, et al., 2002. “Lung Cancer, Cardiopulmonary Mortality, and Long-term Exposure to Fine Particulate Air Pollution.” Journal of the American Medical Association 287:1132-1141 15 Laden, et al., 2006. “Reduction in Fine Particulate Air Pollution and Mortality.” American Journal of Respiratory and Critical Care Medicine. 173: 667-672

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Most of the estimated PM-related benefits in this rule

would accrue to populations exposed to higher levels of PM2.5.

Using the Pope, et al., (2002) study, 85 percent of the

population is exposed at or above the LML of 7.5 µg/m3. Using

the Laden, et al., (2006) study, 40 percent of the population is

exposed above the LML of 10 µg/m3. It is important to emphasize

that we have high confidence in PM2.5-related effects down to

the lowest LML of the major cohort studies. This fact is

important, because as we estimate PM-related mortality among

populations exposed to levels of PM2.5 that are successively

lower, our confidence in the results diminishes. However, our

analysis shows that the great majority of the impacts occur at

higher exposures.

Every benefit analysis examining the potential effects of a

change in environmental protection requirements is limited, to

some extent, by data gaps, model capabilities (such as

geographic coverage) and uncertainties in the underlying

scientific and economic studies used to configure the benefit

and cost models. Despite these uncertainties, we believe the

benefit analysis for this rule provides a reasonable indication

of the expected health benefits of the rulemaking under a set of

reasonable assumptions. This analysis does not include the type

of detailed uncertainty assessment found in the 2006 PM2.5 NAAQS

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RIA because we lack the necessary air quality input and

monitoring data to run the benefits model. In addition, we have

not conducted any air quality modeling for this rule. The 2006

PM2.5 NAAQS benefits analysis16 provides an indication of the

sensitivity of our results to various assumptions.

It should be emphasized that the monetized benefits

estimates provided above do not include benefits from several

important benefit categories, including reducing other air

pollutants, ecosystem effects and visibility impairment. The

benefits from reducing HAP have not been monetized in this

analysis, including reducing 20,000 tons of carbon monoxide, 780

tons of HCl, 2.5 tons of lead, 1.8 tons of cadmium, 680 pounds

of mercury, and 58 grams of total D/F each year. Although we do

not have sufficient information or modeling available to provide

monetized estimates for this rulemaking, we include a

qualitative assessment of the health effects of these air

pollutants in the RIA for this rule, which is available in the

docket.

For more information on the benefits analysis, please refer

to the RIA for this rulemaking, which is available in the

docket.

III. NHSM Final Revisions

16 U.S. Environmental Protection Agency, 2006. Final Regulatory Impact Analysis: PM2.5 NAAQS. Prepared by Office of Air and Radiation. October. Available on the Internet at http://www.epa.gov/ttn/ecas/ria.html

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A. Statutory Authority

The EPA is promulgating these regulations under the

authority of sections 2002(a)(1) and 1004(27) of the RCRA, as

amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D)

of the CAA ((42 U.S.C. 7429) directs the EPA to establish

standards for CISWIs, which burn solid waste. Section 129(g)(6)

of the CAA provides that the term “solid waste” is to be

established by the EPA under RCRA. Section 2002(a)(1) of RCRA

authorizes the agency to promulgate regulations as are necessary

to carry out its functions under the Act. The statutory

definition of “solid waste” is provided in RCRA section

1004(27).

B. NHSM Rule History

The agency first solicited comments on how the RCRA

definition of solid waste should apply to NHSMs used as fuels or

ingredients in combustion units in an ANPRM, which was published

in the Federal Register on January 2, 2009 (74 FR 41). We then

published a NHSM proposed rule on June 4, 2010 (75 FR 31844),

which the EPA issued in final form on March 21, 2011 (76 FR

15456). The March 2011, NHSM final rule codified the standards

and procedures for identifying which non-hazardous secondary

materials are “solid waste” when used as fuels or ingredients in

combustion units.

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In October 2011, the agency announced it would be

initiating new rulemaking proceedings to revise certain aspects

of the NHSM rule.17 On December 23, 2011, we then published a

proposed rule, which addressed specific targeted amendments and

clarifications to the part 241 regulations (76 FR 80452). These

proposed revisions and clarifications were limited to certain

issues on which the agency had received new information, as well

as targeted revisions that the agency believed were appropriate

in order to allow implementation of the rule as the EPA

originally intended.18 As stated throughout the preamble to the

proposed rule, the agency was not reopening the entire NHSM rule

for reconsideration and would not respond to comments directed

toward rule provisions that were not specifically identified in

this proposal.19 Therefore, any comments that were submitted

outside the scope of the proposal, or for which the EPA did not

solicit comment, are not addressed in this final rule, or in the

17 See October 14, 2011, Letter from Administrator Lisa P. Jackson to Senator Olympia Snowe. A copy of this letter has been placed in the docket for today’s rule (EPA-HQ-RCRA-2008-1873). 18 For more information regarding the intent of the December 23, 2011, proposed rule, see 76 FR 80469. For more information regarding the scope of the proposed rule, see 76 FR 80470-80474. 19 For example, see 76 FR 80470: “The EPA is soliciting comment only on these targeted changes and is not reopening any other issues in the final NHSM rule. Comments that go beyond the scope of this narrow RCRA rulemaking will not be addressed by the Agency when it finalizes today’s proposed rule.” See also 76 FR 80474 “As noted above, the intent of this proposal is to identify certain specific aspects of the rule which EPA is reconsidering and on which it is soliciting public comment. The Agency is not reopening the entire rule for reconsideration and will not respond to comments directed toward rule provisions that are not specifically identified in this proposal.” and 76 FR 80482 “The Agency is not considering any change to the self-implementing, mandatory nature of the §241.3 standards for individual facilities and will not respond to any comments on this topic.”.

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Response to Comments document that has been prepared for this

final rule.

The Agency also notes that even though the NHSM final rule

will become effective on April 8, 2013, existing facilities that

currently burn NHSMs will have a substantial amount of time

before having to comply with the CISWI standards, as the

compliance date for existing CISWI sources subject to CAA 129

standards is 5 years after the date of publication of the CISWI

final rule or 3 years after the state plan is approved,

whichever happens earlier. In addition, the Boiler MACT rule

provides until February 7, 2016, for existing sources to comply

with the standards. We recognize that new sources will have to

comply with these rules sooner than do existing sources. Thus,

we believe that there will be more than adequate time for

persons to determine whether or not a NHSM sent to a combustion

unit is a solid waste.

C. Introduction — Summary of Regulations Being Finalized

In today’s rule, the EPA is finalizing certain amendments

and clarifications to the 40 CFR part 241 regulations on which

we have received new information, as well as specific targeted

revisions that are appropriate in order to allow implementation

of the rule as the EPA originally intended. The regulations

being issued today are summarized below. The intent of this

summary is to give a brief overview of the revised part 241

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regulations. More detailed discussions, including the agency’s

responses to comments received on the proposed rule and its

rationale for decisions being made in this final action, are

included in section III.D of this preamble. In addition, in an

effort to aid the regulated community, the EPA is including in

the docket for today’s rule an informational redline/strikeout

version that identifies the specific changes to the regulatory

text, as compared to the March 2011, final rule.20

1. Revised Definitions

In today’s rule, the EPA is finalizing revisions to the

three definitions discussed in the proposed rule: (1) “clean

cellulosic biomass,” (2) “contaminants,” and (3) “established

tire collection programs.” In addition, based on comments

received on the proposed rule, the agency is also finalizing a

revised definition of “resinated wood.” These revised

definitions will be codified in 40 CFR 241.2.

a. Clean Cellulosic Biomass

In today’s action, the EPA is issuing a revised definition

of “clean cellulosic biomass” that: (1) makes clear that the

list of biomass materials are examples within the definition and

is not intended to be an exhaustive list; and (2) provides a

more comprehensive list of clean cellulosic biomass to guide the

20 This document has been titled, “NHSM 2012 Final Rule Regulation Changes” and is placed in Docket No: EPA-HQ-RCRA-2008-0329.

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regulated community. These revisions do not change the agency’s

intent under the March 2011 final rule, but identify additional

materials that are “clean cellulosic biomass,” and, thus, are

traditional fuels under these regulations. A discussion of

relevant comments regarding the definition of clean cellulosic

biomass, as well as our rationale for making these

determinations, can be found in section III.D.1.a of this

preamble.

b. Contaminants

In today’s action, the EPA is issuing a final definition of

“contaminants” to clarify what constituents will be considered

contaminants for the purposes of the contaminant legitimacy

criterion. Revisions include: (1) the replacement of a reference

to “any constituent that will result in emissions” with a

specific list of constituents to be considered as contaminants

based on their status as a precursor to air emissions; (2) the

removal from the definition of specific CAA section 112(b) and

129(a)(4) pollutants that are not expected to be found in any

NHSM or are adequately covered elsewhere in the definition; and

(3) the removal of the phrase “including those constituents that

could generate products of incomplete combustion” from the

definition. A discussion of relevant comments regarding the

contaminants definition, as well as our rationale for making

these determinations, can be found in section III.D.1.b of this

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preamble.

c. Established Tire Collection Programs

In today’s action, the EPA is finalizing a revised

definition of “established tire collection program” in order to

account for “off-specification” (including factory scrap) tires

that are contractually arranged to be collected, managed and

transported between a tire manufacturer (including retailers or

other parties involved in the distribution and sale of new

tires) and a combustor, which is analogous to how scrap tires

removed from vehicles are managed. The off-specification tires

are not removed from vehicles21 and are handled under contractual

arrangements which ensure they are not discarded. A description

of how the changes to the definition accommodate the management

of off-specification tires can be found in section III.D.1.c of

this preamble. In addition to the proposed changes, we are

revising the definition to specifically include tires that were

not abandoned and were received from the general public at tire

collection program events. A discussion of relevant comments

regarding the definition, as well as our rationale for making

this determination, can be found in section III.D.1.c of this

preamble.

d. Resinated Wood

In today’s action, the EPA is issuing a revised definition

21 “Removal from vehicles” had been a component of the definition.

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of “resinated wood” that includes additional materials in order

to be more representative of the universe of resinated wood

residuals that are currently used as fuels throughout the wood

product manufacturing process. Revisions include: (1) replacing

the phrase “containing resin adhesives” with the phrase,

“containing binders and adhesives,” and (2) specifically

including “off-specification resinated wood products that do not

meet a manufacturing quality or standard” within this

definition. A discussion of relevant comments regarding the

resinated wood definition, as well as our rationale for making

this determination, can be found in section III.D.3.b of this

preamble.

2. Contaminant Legitimacy Criterion for NHSM Used as Fuels

In today’s action, the EPA is issuing in final form a

revised contaminant legitimacy criterion for NHSMs used as fuels

to provide additional details on how contaminant comparisons

between NHSMs and traditional fuels may be made. Revisions

include: (1) the ability to compare groups of contaminants where

technically reasonable; (2) the clarification that “designed to

burn” means can burn or does burn, and not necessarily permitted

to burn; (3) the ability to use traditional fuel data from

national surveys and other sources beyond a facility’s current

fuel supplier; and (4) the ability to use ranges of traditional

fuel contaminant levels when making contaminant comparisons,

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provided the variability of NHSM contaminant levels is also

considered. A discussion of relevant comments regarding the

contaminant legitimacy criterion for NHSMs used as fuels, as

well as our rationale for making these determinations, can be

found in section III.D.2 of this preamble.


as Fuels

In today’s final rule, the agency is codifying

determinations that certain NHSMs are non-wastes when used as

fuels. Based on all available information, the EPA has

determined that the following NHSMs are categorically not a

solid waste when burned as a fuel in combustion units: (1) scrap

tires that are not discarded and are managed under the oversight

of established tire collection programs, including tires removed

from vehicles and off-specification tires; (2) resinated wood;

(3) coal refuse that has been recovered from legacy piles and

processed in the same manner as currently-generated coal refuse;

and (4) dewatered pulp and paper sludges that are not discarded

and are generated and burned on-site by pulp and paper mills

that burn a significant portion of such materials where such

dewatered residuals are managed in a manner that preserves the

meaningful heating value of the materials.

a. Scrap Tires

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In today’s action, the agency is adding scrap tires that

are not discarded and are managed under the oversight of

established tire collection programs, including tires removed

from vehicles and off-specification tires (including factory

scraps), to the categorical list of non-waste fuels (see 40 CFR

241.4(a)(1)) as proposed. Based on this categorical non-waste

determination, facilities burning the scrap tires that qualify

for the provision will not need to demonstrate that this NHSM

meets the legitimacy criteria on a site-by-site basis. Further,

the addition to the new categorical non-waste provision at 40

CFR 241.4(a)(1) eliminated the need for the previous scrap tire

provision at 40 CFR 241.3(b)(2)(i),22 which has been removed and

reserved in today’s final rule. A discussion of relevant

comments regarding the scrap tire provision, as well as our

rationale for making this determination, can be found in section

III.D.3.a of this preamble.

b. Resinated Wood

In today’s action, the agency is listing resinated wood as

a non-waste fuel in 40 CFR 241.4(a)(2), as proposed. The EPA has

22 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: “(b) The following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.”

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evaluated resinated wood and, based on all available

information, including consideration of the legitimacy criteria,

as well as other relevant factors, has determined that resinated

wood is not a solid waste when used as a fuel. Based on this

categorical non-waste determination, facilities burning

resinated wood residuals as a fuel will not need to demonstrate

that this NHSM meets the legitimacy criteria on a site-by-site

basis.

Further, the addition of this categorical non-waste

determination (40 CFR 241.4(a)(2)) eliminated the need for the

previous resinated wood provision at 40 CFR 241.3(b)(2)(ii),23

which has been removed and reserved in today’s final rule. A

discussion of relevant comments regarding the categorical non-

waste determination for resinated wood, as well as our rationale

for making this determination, can be found in section III.D.3.b

of this preamble.

c. Coal Refuse

In today’s action, the agency has determined that coal

refuse that has been recovered from legacy piles and processed

23 The resinated wood provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: “(b) The following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (ii) Resinated wood used in a combustion unit.”

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in the same manner as currently-generated coal refuse, is a non-

waste fuel in 40 CFR 241.4(a)(3). This determination is based on

the fact that: (1)legacy coal refuse processed in the same

manner as currently-generated coal refuse meets the definition

of processing (as codified in 40 CFR 241.2); and (2)the EPA’s

assessment that such materials meet the legitimacy criteria for

fuels (as codified in 40 CFR 241.3(d)(1)) when compared to

currently-generated coal refuse, which the agency considers to

be within the definition of a traditional fuel (as codified in

40 CFR 241.2). Based on this categorical non-waste

determination, facilities burning these materials as a fuel will

not need to demonstrate that this NHSM meets the legitimacy

criteria on a site-by-site basis. A discussion of relevant

comments regarding the categorical non-waste determination for

coal refuse that is recovered from legacy piles and processed,

as well as our rationale for making this determination, can be

found in section III.D.5.b of this preamble.

d. Pulp and Paper Sludge

In today’s action, the EPA has determined that dewatered

pulp and paper sludges that are not discarded and are generated

and burned on-site by pulp and paper mills that burn a

significant portion of such materials where such dewatered

residuals are managed in a manner that preserves the meaningful

heating value of the materials are non-waste fuels in 40 CFR

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241.4(a)(4). This determination for pulp and paper sludge as a

categorical non-waste represents the agency’s finding, after

balancing the regulatory legitimacy criteria with other relevant

factors, that the burning of this material is an integral part

of facility operations, and as described in the categorical

listing is for energy recovery and not discard. Based on this

categorical non-waste determination, facilities meeting the

description of this determination and burning these materials as

a fuel will not need to demonstrate that this NHSM meets the

legitimacy criteria on a site-by-site basis. A discussion of

relevant comments regarding the categorical non-waste

determination for pulp and paper sludges, as well as our

rationale for making this determination, can be found in section

III.D.5.a of this preamble.

4. Rulemaking Petition Process for Other Categorical Non-Waste

Determinations (40 CFR 241.4(b))

In today’s final rule, the agency is finalizing a

rulemaking petition process that provides persons with an

opportunity to submit a rulemaking petition to the

Administrator, seeking a categorical determination for

additional NHSMs to be listed in 40 CFR 241.4(a) as non-waste

fuels. The process for submitting a rulemaking petition to the

agency, as well as the factors a successful application must

include, is listed in 40 CFR 241.4(b). A discussion of relevant

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comments regarding the petition process for the categorical

listings, as well as our rationale for the categorical

rulemaking petition process, can be found in section III.D.4 of

this preamble.

5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination

Petition Process

In today’s final rule, the agency is streamlining the non-

waste determination provisions under 40 CFR 241.3(c). The public

participation process was streamlined to accommodate petitions

that apply to multiple combustors. In particular, the

regulations were adjusted to indicate that the appropriate

office in the EPA headquarters may handle petitions that cross

multiple regions. Furthermore, if a determination is made that

the NHSM is a non-waste, the decision will be retroactive and

apply on the date the petition was submitted. A discussion of

relevant comments regarding the streamlining of the 40 CFR

241.3(c) non-waste determination petition process, as well as

our rationale for the streamlining changes made to the non-waste

determination process, can be found in section III.D.6 of this

preamble.

6. Revised Introductory Text for 40 CFR 241.3(a)

In today’s final rule, the agency has decided not to revise

the introductory text of 40 CFR 241.3(a). In its December 2011

proposed rule, the EPA considered revising this introductory

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text to state that NHSMs are “presumed to be” solid wastes,

rather than “are” solid wastes. While the proposed change was

not expected to be a substantive change to the rule, but merely

a reflection of the record at the time, it did engender some

confusion among commenters. Based on the comments received, we

have decided not to issue revised introductory text 40 CFR

241.3(a) and, thus, this section will continue to read as

codified in the March 2011 NHSM final rule. A discussion of

relevant comments regarding the introductory text of 40 CFR

241.3(a), as well as our rationale for this decision, can be

found in section III.D.7 of this preamble.

D. Comments on the Proposed Rule and Rationale for Final

Decisions

In this section, the EPA addresses major comments the

agency received regarding the targeted revisions that were

proposed to certain part 241 provisions in the December 23,

2011, proposal. In discussing the comments received on the

proposal, we also provide the rationale for making the revisions

that are finalized in today’s action. As previously discussed,

the agency specifically stated that it would not address

comments that go beyond the scope of this narrow RCRA

rulemaking.

1. Revised Definitions

a. Clean Cellulosic Biomass

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The proposed rule suggested revising the March 2011

definition of “clean cellulosic biomass” to list additional

examples of biomass materials that are appropriately included

within this definition. These fuels are not secondary materials

or solid wastes unless discarded. Clean biomass is “biomass that

does not contain contaminants at concentrations not normally

associated with virgin biomass materials” (codified in 40 CFR

241.2).

This regulatory revision would not change the agency’s

intent under the March 2011 final rule, but would identify

additional materials that are “clean cellulosic biomass,” and,

thus, would be a traditional fuel under these regulations. While

the list of clean biomass materials is only illustrative and not

exhaustive, it is now more comprehensive than the list that

appeared in the definition included in the 2011 NHSM final rule.

One of the materials within the definition is clean C&D

wood. In light of some confusion in comments regarding C&D wood,

the EPA is clarifying the meaning of the term in the definition

of “clean cellulosic biomass.” Construction & demolition wood

actually may be placed into different categories, depending upon

its origin. In accordance with the traditional fuels definition

in section 241.2, clean C&D wood could be combusted as a

traditional fuel if it does not contain contaminants at

concentrations not normally associated with virgin wood.

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However, the final NHSM rule also addressed C&D wood that

may contain contaminated material.24 There is no need to repeat

these discussions here, except to clarify what the final rule

means. In general, contaminated C&D wood that has been processed

to remove contaminants, such as lead-painted wood, treated wood

containing contaminants, such as arsenic and chromium, metals

and other non-wood materials, prior to burning, likely meets the

processing and legitimacy criteria for contaminants, and thus

can be combusted as a non-waste fuel (see further discussion in

response to comments below).

Comment: One commenter noted that the EPA's specific

inclusion of "untreated wood pallets" implicitly accepts that

small amounts of non-wood material inherent to the pallets, such

as screws or plastic fasteners, do not render those materials

solid waste under the rule, and de minimis amounts of non-

biomass material would not require these types of materials to

be burned in incinerators under the CISWI rule.

Another commenter requested that the EPA reconsider use of

the word “untreated” when referring to wood pallets. The

commenter argues that the EPA does not define the word

“untreated” and its use could create confusion. Rather, the

commenter recommends that “untreated” be replaced with the word

“clean,” which is an adjective used in the definition to

24 See 76 FR 15485.

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distinguish other materials (e.g., “clean construction and

demolition wood”).

Response: Wood pallets are refurbished or recycled for

other uses by pallet recyclers. When the useful life of the

pallet is finished, the recyclers typically remove the small

amount of non-wood material inherent to pallets that would

inhibit combustion, such as screws or plastic fasteners. The

pallets are then ready for use as fuel, and the non-wood

material would not impact whether the material can be burned in

combustion units that meet the CAA section 112 emission

standards. The agency is not aware of instances where the

pallets are used as fuel directly by the original users and non-

wood material is left remaining in the pallet. Such pallets

would not be considered clean cellulosic biomass under the rule.

With respect to the other comment, the EPA does not agree,

that the term “untreated” wood pallet be replaced with the term

“clean” wood pallet. The term “clean” is defined in the

traditional fuels definition as described above, and applies to

all the materials listed in the definition of clean cellulosic

biomass, which includes untreated wood pallets. It would be

redundant to define “clean” biomass as including “clean” wood

pallets. The point is that some wood pallets may contain treated

wood, such as CCA treated wood, and inclusion of the term

“untreated” with wood pallet would help emphasize that such

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treated wood would not be considered “clean” under the

definition of clean cellulosic biomass.

Comment: Several commenters indicated that the definition

of clean cellulosic biomass remains ambiguous because it

continues to include the caveat that: “Clean biomass is

biomass that does not contain contaminants at concentrations not

normally associated with virgin biomass materials.” Thus,

notwithstanding the EPA’s attempt at expanding the definition of

clean cellulosic biomass, the commenters believed that this

sentence should be removed because it perpetuates uncertainty.

It is not clear what comparisons are permissible and what

concentration levels are appropriate.

The commenters also indicated that this sentence

perpetuates the EPA’s erroneous interpretation of its authority

under RCRA. A material does not become a waste when burned for

energy recovery just because it may contain contaminants --

prior to combustion -- not normally associated with virgin

biomass. It becomes a waste only if it is combusted for the

purpose of disposal, rather than for energy recovery.

Response: The agency disagrees with the commenter that

defining the term “clean” leads to ambiguity in identifying

which materials are clean cellulosic biomass. On the contrary,

defining the term “clean” is meant to ensure that contaminated

cellulosic material being burned, such as lead-painted wood or

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arsenic treated wood, does not introduce contaminants (as

defined in 40 CFR 241.2) not normally associated with virgin

biomass materials.

The agency wishes to emphasize, however, that

determinations that the cellulosic biomass used as a fuel or

ingredient is clean, do not presuppose any testing of

contaminant levels. Persons can use expert or process knowledge

of the material to justify decisions regarding presence of

contaminants.

With respect to the comment that burning of contaminated

material does not make it a waste, the agency has not reopened

this issue for this rule and stands by its responses in the

rulemaking record for the March 2011 final rule.25

Comment: One commenter provided the example of whether

treated seeds that contain additives are considered contaminants

in virgin biomass. These additives may not be found in virgin

seeds but are not harmful at the concentrations found in the

25 See, for example, 76 FR 15523-4: “If a non-hazardous secondary material contains contaminants that are not comparable to those found in traditional fuels, and those contaminants are related to pollutants that are of concern at solid waste combustion units, then it follows that discard is occurring. The contaminants in these cases could not be considered a normal part of a legitimate fuel and are being discarded, either through destruction in the combustion unit or through releases into the air. Units that burn such materials are therefore most appropriately regulated under the CAA section 129 standards for solid waste incinerators.” See also 76 FR 15485, which states: “[A]s we have noted previously, the criterion or test for determining whether a material is burned as a waste or a commodity fuel is the level of the contaminant in the secondary material itself – that is destruction of contaminants indicates a waste treatment activity rather than a commodity fuel.”

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seeds. The commenter questioned whether any concentration above

“natural” (concentration levels found in virgin material),

especially when combusted as fuel, would be prohibited and

require additional waste regulation.

Response: Seeds may be treated with pesticides and hormones

to aid in germination. Such chemicals do not generally include

contaminants as defined in section 241.2; therefore, such

treated seeds would be considered clean cellulosic biomass.

Comment: Several commenters indicated that, as part of the

EPA’s changes in the definition of clean cellulosic biomass, it

is proposing to consider treated or painted wood the same as

“virgin” wood if it has lower than de minimis levels of

contamination. While adoption of numerical values in the rule

would require additional provisions for measurements and would

require additional notice, the commenter believes that such

clarity is important for successful implementation of the rule.

Such limits would be applied to “clean” C&D material, for

instance, among other potential fuel types. The term de minimis

is not defined numerically in the proposed rule and the

commenters argue that without a specific numerical de minimis

limit, sources would not have a clear understanding of whether

they fall under the CISWI or hazardous waste incinerator rules.

The commenter recommended that the EPA define and allow for

public comment on the levels associated with the term de minimis

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and base the de minimis levels on contaminant levels found in

typical “virgin” wood.

Response: Regarding the addition of a definition for de

minimis amounts of contaminants remaining in processed wood, the

agency does not believe it appropriate to identify specific

concentration levels. Rather, the agency interprets de minimis

as that term is commonly understood; i.e., insignificant or

negligible amounts of contamination such as small wood sliver

containing lead paint).

As indicated above, there also appears to be confusion

among commenters regarding two different categories of C&D wood

- - “clean C&D wood” that is a traditional fuel, and C&D wood

that has been processed to remove contaminants. Under the 2011

NHSM final rule, C&D wood that has been processed to remove

contaminants, such as lead-painted wood, treated wood containing

contaminants, such as arsenic and chromium, metals and other

non-wood materials, prior to burning, likely meets the

processing and legitimacy criteria for contaminants, and thus

can be combusted as a non-waste fuel but would not be considered

“clean C&D wood.” Such C&D wood may contain de minimis amounts

of contaminants and other materials provided it meets the

legitimacy criteria for contaminant levels. To meet the

contaminant legitimacy criterion, concentration levels of

contaminants in the processed C&D wood must be comparable to or

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less than the levels in the traditional fuel the unit was

designed to burn, whether wood or another traditional fuel (see

section III.D.2 for a discussion on contaminant comparisons). In

contrast, “clean C&D wood” is a traditional fuel that does not

require processing and meets the definition of “clean” (i.e.,

C&D wood that does not contain contaminants at concentrations

not normally associated with virgin biomass (wood)). Thus, de

minimis amounts of contaminants and other material appropriate

for processed C&D wood would not be appropriate for clean wood

that is a traditional fuel.

Comment: One commenter argued that states should have

discretion about how to determine appropriate fuel quality but

it should be no less stringent than limits set by the EPA. There

should be a distinction between de minimis levels of

contamination in C&D wood and a fuel quality standard.

Response: We do not necessarily disagree with the

commenter. That is, as discussed in the final rule, part 241

does not preempt a state’s statutory or regulatory standards and

states are free to establish fuel quality standards for C&D

wood. However, we would also note that as solid waste is defined

by the EPA under RCRA, such state standards would not

necessarily impact the status of the material as it relates to

which combustion units are subject to CAA section 129 (56 FR

15546).

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b. Contaminants

The December 2011 rule proposed to clarify what

constituents will be considered contaminants by making the

definition of “contaminants” more specific. However, the

proposal maintained the fundamental approach—and was intended to

cover the same constituents—as the March 2011 final rule.

The March 2011 final rule and the December 2011 proposed

rule identified the same three ways a chemical can be labeled a

contaminant. First, it may be one of the 187 HAP currently

listed in CAA section 112(b); second, it may be one of the nine

pollutants listed under CAA section 129(a)(4); and third, it may

be one of a handful of chemicals whose combustion will result in

the formation of listed CAA section 112(b) and section 129(a)(4)

pollutants (e.g., sulfur that will result in SO2).

The definition proposed in December provided clarification

by listing the constituents that belong to the third group.26

Specifically, the proposed revision replaced a potentially

ambiguous reference to “any constituent that will result in

emissions” with the four specific elements the agency intended

to be considered as contaminants (chlorine, fluorine, nitrogen,

and sulfur) based on their status as a precursor to air

emissions. In all four cases, the CAA pollutant itself (e.g.,

26 Eleven metal elements directly identified in CAA section 112(b) were also listed in the proposed definition to provide the regulated community with a complete list of elements that are considered “contaminants” under the rule.

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SO2) is not likely to be present in the NHSM prior to

combustion, and the only way to measure constituents prior to

combustion “that will result in emissions” of that pollutant is

to measure a known precursor (e.g., sulfur) instead. For each of

the four precursor elements listed as contaminants in the

proposal, the expected fate for the precursor during combustion

is formation of the aforementioned pollutant and the precursor

makes no substantive contribution to the material’s value as a

fuel. For these reasons, the agency proposed to specifically

identify chlorine, fluorine, nitrogen, and sulfur as

contaminants in place of HCl, HF, NOx and SO2. By limiting the

list of precursors considered contaminants to these four

elements, the revised definition also made clear that the agency

did not intend to include other elements present in contaminants

(such as hydrogen and carbon) as contaminants themselves.

The December 2011 proposed rule also removed from the

definition of contaminants those pollutants in CAA sections

112(b) and 129(a)(4) that we do not expect to find in any NHSM.

Specifically:

• Chlorine gas, HCl, HF, NOx, and SO2 were removed from the

definition because they are unlikely to be found in NHSMs prior to combustion and had been replaced by the elements chlorine, fluorine, nitrogen and sulfur as discussed above;

• Fine mineral fibers were removed because they are releases from the manufacturing and processing (not combustion) of non-combustible rock, glass or slag into mineral fibers;

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• Particulate matter and coke oven emissions were removed

because they are products of combustion unlikely to exist in NHSMs prior to combustion;

• Cresol isomers m-cresol, o-cresol, and p-cresol were removed because the listed pollutant cresols/cresylic acid includes these three isomers;

• Xylene isomers m-xylene, o-xylene, and p-xylene were removed because the listed pollutant xylenes includes these three isomers; and

• Diazomethane, white phosphorus, and titanium tetrachloride were removed because their high reactivity makes their presence in NHSMs very unlikely.

In addition, two phrases present in the March 2011 final

rule “contaminants” definition were not included in the December

2011 proposed rule definition. First, the phrase concerning

constituents “that will result in emissions of the air

pollutants” was removed since the regulated community had

expressed confusion that in determining whether or not a NHSM

meets the contaminant legitimacy criterion, emissions from the

combustion unit were to be evaluated. The EPA disagreed and

directed readers to the language in sections 241.3(d)(1)(iii)

and 241.3(d)(2)(iv). These sections state that contaminant

comparisons are based on the presence of contaminants in the

NHSM (or products made from NHSMs in the case of ingredients),

not the resulting emissions. The proposed revision also inserted

the phrase “prior to combustion” into the contaminants

definition to further emphasize that the NHSMs, not the

emissions that result from NHSMs, are to be evaluated when

conducting contaminant comparisons. The rationale for evaluating

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the NHSM, and not emissions, can be found in the record for the

March 2011 final rule.27 The proposal merely added language to

ensure the rule is consistent with the agency’s intent.

The second phrase proposed to be removed from the March

2011 final rule definition was a reference to “those

constituents that could generate products of incomplete

combustion,” also referred to as PICs. This reference was

removed from the definition because it was duplicative and

potentially misleading. Specifically, this phrase was not

necessary because all PICs that the agency considers air

pollutants—including dioxins, dibenzofurans, PCBs and PAHs—are

listed in CAA sections 112(b) or 129(a)(4) and are thus already

included in the “contaminants” definition. More importantly, the

phrase was potentially misleading because PIC formation depends

heavily on combustion conditions, such as air/fuel ratio and

mixing. These conditions are controlled to limit emissions and

neither these conditions nor emissions are the subject of this

rule. The NSHM itself is the subject of this rule. Thus, the

removal of both phrases clarified, but did not alter, the

constituents subject to the contaminant legitimacy criterion.

The EPA believes that comments have not changed the basis

for listing specific precursors to air emissions as

contaminants, nor have they changed the basis for either

27 For example, see 76 FR 15524-15525.

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excluding specific constituents from the definition or removing

the references to “that will result in emissions of the air

pollutants” and “constituents that could generate products of

incomplete combustion” from the definition. Thus, the EPA is

adopting the reasoning from the proposal and revising the

definition of contaminants to incorporate these concepts.

The EPA has decided, however, to make several modifications

to the regulatory language of the December 2011 proposed rule

based on comments received and information in the rulemaking

record. First, in the final definition issued today, precursors

will only be considered contaminants for NHSMs used as fuels;

precursors will not be considered contaminants for NHSMs used as

ingredients. Furthermore, precursors will not be considered

contaminants if they do not form their corresponding pollutants.

Also, opacity has been removed from the contaminants definition.

Finally, the phrase “prior to combustion” has not been inserted

into the contaminants definition, as had been proposed.

Contaminants in NHSMs used as fuel in combustion units must

still be evaluated prior to combustion, and persons must still

evaluate the NHSM itself (not emissions), but the agency has

determined that the topic of when to evaluate contaminants is

more appropriate to address in the legitimacy criteria than in

the contaminants definition.

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Additional reasoning for keeping the rule provisions as

proposed, and for any modifications to the proposed language,

are described in the following responses to comments.

Comment: Several commenters stated that the definition of

contaminants should focus on contaminants released as combusted

emissions. One commenter argued that contaminants should be

compared between emitted contaminants and emission standards. A

second commenter reiterated previous comments that contaminant

levels should be related to the air emissions and not the

content of the material. For support, commenters cited that the

EPA reversed its position in the proposal by using possible air

emissions as the basis for establishing what contaminants need

to be compared.

Response: The EPA has previously stated that contaminant

levels before and after combustion can be important indicators

of legitimacy and it maintains the position from the March 2011

final rule that non-waste fuels must be similar in composition

to traditional fuels prior to combustion.28 Because combustion

and emission control processes can destroy or remove

contaminants, a comparison of emissions profiles alone only

tells one how well the combustion unit is operating, not whether

28 See 76 FR 15525.

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the NHSM is being used as a legitimate non-waste commodity

fuel.29

The EPA disagrees with the comment that the agency reversed

its position on the consideration of emissions in the proposal

by including precursors to air emissions as contaminants. The

agency notes that a difference exists between comparing

“emissions” and comparing “contaminants that will result in

emissions,” the exact language used in the March 2011 final

rule. The EPA has clarified what it intended by “contaminants

that will result in emissions” in today’s final action. This

clarification involves the listing of specific precursors known

to result in emissions of air pollutants when combusted; it also

involves the removal of specific pollutants known not to be

present in NHSMs.

Comment: Two commenters expressed concern that the proposed

definition of contaminants conflicted with the contaminant

legitimacy criterion for NHSMs used as ingredients in combustion

units. Commenters stated that both the definition of

contaminants, as proposed, and the existing contaminant

legitimacy criterion for ingredients were clear when read

separately but were contradictory when taken together. The

commenters encouraged the EPA to clarify the regulatory text.

Specifically, the commenters noted that for ingredients,

29 Id.

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contaminants could not be evaluated prior to combustion and then

used to compare products produced using NHSMs to products

produced using traditional materials.

Response: The EPA has decided not to include language from

the December 2011 proposed rule in the definition of

contaminants that emphasized when NHSM contaminant levels are to

be evaluated (i.e., before or after combustion). While the

proposed additional language made clear that NHSMs used as a

fuel were to be evaluated for contaminants “prior to

combustion,” the agency agrees with the two commenters who

argued that the proposed language conflicts with the contaminant

legitimacy criterion for ingredients. The contaminant criterion

for ingredients requires comparisons to be made between products

produced with and without NHSMs, but until the products exist,

they cannot be compared.

As such, the agency has decided not to adopt the proposed

additional language addressing when contaminants are to be

evaluated in the definition of contaminants. The agency proposed

similar language in the December 2011 rule addressing this topic

in the contaminant legitimacy criterion and the agency is

adopting that language in today’s final rule. The agency has

determined that the legitimacy criteria themselves (40 CFR

241.3(d)(1)(iii) for fuels and 40 CFR 241.3(d)(2)(iv) for

ingredients) are more appropriate places to address this topic.

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The EPA has also decided to add language to the definition

of contaminants clarifying that the specification of particular

precursors to air emissions (i.e., chlorine, fluorine, nitrogen

and sulfur) as contaminants does not apply to the contaminant

legitimacy criterion for ingredients. As identified by the

commenters, the contaminant criterion for ingredients requires

comparisons to be made between products produced with and

without NHSMs. Products can only be compared after combustion

has occurred, at which point there will be no benefit to

measuring levels of precursors.

The agency also notes that it does not envision a situation

where NHSMs containing chlorine, fluorine, nitrogen or sulfur

would be used as ingredients in such a way that would emit

higher levels of HCl, HF, NOx or SO2 than would be emitted using

traditional ingredients without the material being considered a

solid waste. In all cases, ingredients must provide a valuable

contribution to the product being produced, and that product

must itself be valuable, in order to not be considered a solid

waste. For an ingredient to provide value, the agency expects

the ingredient to remain in a product rather than be destroyed

or released via emissions. This is a key reason why the

contaminant legitimacy criterion for ingredients focuses on

products (i.e., toxics along for the ride) rather than

emissions. Furthermore, the legitimacy criteria for ingredients

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cannot be used to avoid the legitimacy criteria for fuels if the

material is being used for both purposes.

Comment: Several commenters questioned the rationale for

including precursors to air emissions as “contaminants” under

the proposed revised definition. Some indicated that the concept

is far removed from the true meaning of “discard,” with one

comment stating that the EPA has no legal, rational or

scientific basis for considering the presence of sulfur or

nitrogen in NHSMs as evidence of intent to discard SO2 or NOx

during combustion. To support this argument, the commenter first

noted that the EPA has no record basis for assuming that the

intent of the combustor is to discard the constituent, rather

than to generate energy. Second, the commenter noted that

whether or not a boiler has emissions of regulated air

pollutants, such as SO2 or NOx when it combusts a precursor will

depend, not on an intent to discard these pollutants, but on

boiler operation and design.

Two commenters also stated that the preamble discussion on

precursors demonstrates how far removed the EPA’s rationale for

this rulemaking is from the concept of discard. They noted that

the EPA is requiring combustors to document and keep records

regarding the fact that CO is not present in NHSMs, and, under

CISWI, would identify the NHSM as waste if this documentation is

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not maintained. The commenters failed to see how this has

anything to do with a determination that a material is a waste

under RCRA.

Response: The EPA disagrees with these comments. Precursors

to emissions of identified air pollutants are important and

appropriate to address as contaminants in NHSMs prior to

combustion. It is also necessary to tailor the definition of

contaminants to the realities of the combustion process, during

which precursors present in NHSMs used a fuel—many of which are

solid or liquid—are transformed into air pollutants.

However, the agency agrees with those commenters who argued

that the revised definition, as proposed, may be too broad with

regard to precursors that may not form air pollutants in all

cases. For example, if the combustion of nitrogen does not form

NOx in a particular situation, the agency did not intend in its

December 2011 proposed rule to consider nitrogen as a

contaminant in that particular situation.30 The EPA noted in the

proposed rule that chlorine, fluorine, nitrogen and sulfur will

form pollutants of concern in most circumstances, but the agency

does acknowledge that specific technologies and practices may

prevent these transformations from happening in the first

30 See March 16, 2012 Response from James R. Berlow, Director, Program Implementation and Information Division, EPA’s Office of Resource Conservation and Recovery to Fadi K. Mourad, DTE Energy Services, Inc. A copy of this response letter has been placed in the docket for today’s rulemaking and is also available at http://www.epa.gov/epawaste/nonhaz/define/index.htm.

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instance, particularly with regard to nitrogen (one example

being the use of Low NOx burners with Over-Fire Air). Thus, the

contaminants definition issued in today’s final rule does not

consider constituents that are normally precursors to CAA

section 112(b) or 129(a)(4) pollutants to be contaminants if a

specific technology or practice prevents them from forming their

corresponding pollutants.

The definition codified in 40 CFR 241.2 only includes

chlorine, fluorine, nitrogen and sulfur as contaminants in cases

where “combustion will result in the formation of hydrogen

chloride (HCl), hydrogen fluoride (HF), nitrogen oxides (NOx),

or sulfur dioxide (SO2).” When compared to the December 2011

proposed rule, the only constituents no longer considered

contaminants due to this modification are chlorine that will not

form HCl during combustion, fluorine that will not form HF

during combustion, nitrogen that will not form NOx during

combustion and sulfur that will not form SO2 during combustion.

This is consistent with the March 2011 NHSM final rule, under

which these constituents would not be contaminants when they

would not “result in emissions” of CAA section 112(b) or section

129(a)(4) pollutants.

Although the EPA is not currently aware of any technologies

or practices that prevent chlorine, fluorine or sulfur in NHSMs

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from forming their associated pollutants during combustion (the

EPA is aware of such examples with nitrogen), the agency

considers it reasonable and appropriate to adopt the same

language for all four precursors to allow for future

technological advances preventing the transformation of these

elements into pollutants during combustion.

Comment: One commenter stated that the consideration of

precursors to air emissions as contaminants could be used to

make the most fundamental of all elements, hydrogen, a

contaminant because it is present in nearly all regulated

pollutants. The presence of hydrogen in a NHSM could then be

considered evidence of intent to discard pollutants that

contained hydrogen.

Response: Under the proposed contaminants definition, only

the specific precursor elements listed (chlorine, fluorine,

nitrogen and sulfur) are considered contaminants. The EPA

determined in the proposal, and adopts as its final decision

today, that these are the only four precursors necessary to

evaluate when comparing contaminants between NHSMs and

traditional fuels. The agency specifically decided not to

include hydrogen on this list. Whereas combustion of chlorine,

fluorine, nitrogen and sulfur typically leads to the formation

of CAA section 112(b) or 129(a)(4) air pollutants, combustion of

hydrogen typically leads to the formation of water vapor.

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Comment: Several commenters opposed the inclusion of

precursors as contaminants on the ground that the formation of

related pollutants depends more on boiler operation and design,

process chemistry and feedstock characteristics than on the

levels of precursors present in the NHSMs.

Response: The EPA recognizes that unit design and operating

conditions can impact the transformation of chlorine, fluorine,

nitrogen and sulfur into air pollutants. Rather than viewing

this as a reason to ignore the pollutants these elements

commonly form, the agency views this as further evidence why

precursor levels must be considered when determining which set

of CAA standards—which in turn regulate unit operating

conditions—should apply.

Comment: Two commenters suggested that the EPA follow a

different approach for defining contaminants and use a method

similar to what the agency used for the used oil specification

in 40 CFR 279.11. In each case, the commenter suggested that for

NHSMs, the definition of contaminants should be limited to

sulfur, nitrogen, chlorine, Cd, Hg and lead because those are

the elements Congress addressed in CAA section 129. This

approach, they argued, would be similar to what the EPA did when

developing the used oil specifications. The point the commenters

wished the agency to draw from the used oil specification

approach is that it addressed elemental species, as opposed to

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individual compounds. Using sulfur as an example, the commenters

reasoned that it is the underlying presence of sulfur-bearing

materials in the NHSMs, as opposed to individual sulfur-

containing compounds on the section 112(b) list, which effects

emissions of SO2.

Response: The EPA disagrees with the approach outlined by

the commenters and has issued a final definition of contaminants

based on both the CAA section 112(b) and the CAA section

129(a)(4) lists, as was proposed. We do agree with the

commenters, however, that identifying precursors that will form

certain CAA pollutants in the definition of contaminants is

appropriate. The approach outlined by the commenters appears to

be based on two premises that the EPA has previously considered

and decided not to adopt.

First, the commenters do not think the definition of

contaminants should reference both the CAA section 112(b) and

CAA section 129(a)(4) lists. The agency previously explained its

decision to use both lists in the March 2011 final rule and does

not believe comments have offered any new information that would

change the basis for this decision. The EPA previously discussed

that both lists of constituents are appropriate because both

lists are to be considered by the EPA when developing emission

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standards.31 Furthermore, the agency has previously explained

that CAA section 129 provides that the term “solid waste” shall

have the meaning promulgated by the EPA under RCRA and that the

EPA has the authority to interpret RCRA to decide whether NHSMs

are solids wastes or not.32 The agency notes that it has

carefully considered the CAA section 112(b) and 129(a)(4) lists

of pollutants and removed those constituents that would not be

appropriate to evaluate in NHSMs.

Second, the commenters base their proposed approach to

defining contaminants purely on emissions. The agency agrees

that emissions may be a means of discard but contaminants that

are destroyed by the combustion process or incorporated into

products may not have emission standards established under CAA

section 129. Combustion may still be a means of discard in these

instances. Thus, a definition of contaminants based only on the

CAA section 129 emissions standards only tells one how well the

combustion unit is operating, not whether the NHSM is being used

as a legitimate non-waste commodity.33

Comment: Several commenters addressed the specific

constituents proposed to be removed from the definition of

contaminants. In general, comments were supportive of the

concept that constituents unlikely to be found in NHSMs prior to

31 See 76 FR 15524-15525. See also, 75 FR 31883. 32 See 76 FR 15469-15470. See also, 76 FR 15473. 33 See 76 FR 15525.

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combustion or adequately measured elsewhere in the definition

should be removed from the definition.

Multiple commenters asked that CO also be removed from the

definition because it is unlikely to be found in NHSMs. The same

commenters asked that opacity be removed from the definition

because it can only be measured in emissions and is not directly

related to any one specific constituent in NHSMs. Particulate

matter and coke oven emissions were removed, noted the

commenters, because they are products of combustion unlikely to

exist in NHSMs prior to combustion, and the same can be said for

CO and opacity.

One commenter expressed concern that asbestos had been

removed from the list due to the removal of “fine mineral

fibers” as a contaminant. The commenter explained that asbestos

is commonly found in construction and demolition debris and

asbestos particles in smoke are deadly. Excluding fine mineral

fibers from regulation explicitly ignores the possibility of

such contamination in C&D debris, noted the commenter, and

asbestos should be a regulated contaminant.

Response: The EPA has issued a final rule containing the

language removing constituents from the definition of

contaminants as proposed, with one change. The agency has

removed “opacity” from the final definition of contaminants as

well. Similar to PM and coke oven emissions, there is no

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practical way to measure opacity in NHSMs prior to combustion or

in products made using NHSMs. In fact, the EPA did not intend

for opacity to be included in the definition of contaminant

under the previous definition. A visual property of an emissions

stream, opacity is not even a constituent, let alone a

constituent that can be measured in NHSMs prior to combustion or

in products made using NHSMs. As such, removing it from the

definition will provide clarity without effecting any practical

change to the definition.34

The agency has not removed CO from the definition of

contaminants because, contrary to comments that it is unlikely

to be found in any NHSM, it is likely to be present in gaseous

NHSMs and is not adequately measured elsewhere in the

“contaminants” definition. However, as we discuss in the

December 2011 proposed rule, CO is unlikely to be found in solid

or liquid NHSMs and EPA expects that persons can use process

knowledge to justify not testing for CO in these cases.35

The agency has removed the fine mineral fibers group from

the definition of contaminants, as proposed, because they are

not expected to be found in NHSMs. Fine mineral fibers, as

regulated under CAA section 112(b) are releases from the

manufacturing and processing of non-combustible rock, glass or

34 Neither Table 7 nor Table 8 in the December 2011 proposed rule included opacity. See 76 FR 80478-80480. 35 See 76 FR 80475

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slag into mineral fibers and are not produced during the

combustion process. Asbestos, on the other hand, has been set

apart from the fine mineral fibers group in CAA section 112(b),

and thus, it is set apart in the NHSM rule. To be clear,

asbestos is included in the definition of contaminants in

today’s final rule and it would be a contaminant regardless of

whether the fine mineral fibers group was removed or not.

In summary, the following 12 CAA section 112(b) and section

129(a)(4) pollutants have been removed from the definition of

contaminants: HCl, Cl2, HF, NOx, SO2, fine mineral fibers, PM,

coke oven emissions, opacity, diazomethane, white phosphorus and

titanium tetrachloride.

c. Established Tire Collection Programs

The 40 CFR part 241.2 definition for “established tire

collection program,” as established by the March 2011

promulgation in the Federal Register, was as follows:

“Established tire collection program means a comprehensive

collection system that ensures scrap tires are not discarded and

are handled as valuable commodities in accordance with section

241.3(b)(2)(i) from the point of removal from the vehicle

through arrival at the combustion facility.”

In the December 2011, NHSM proposed rule, the EPA proposed

to revise this definition (and the related criteria for non-

waste tires now at 40 CFR 241.4(a)(1)) in order to account for

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off-specification tires. The term “off-specification tires” is

intended to also include “factory scraps.” The off-specification

tires are not removed from vehicles and are handled under

contractual arrangements which ensure they are not discarded.

The definition was modified to include “contractual arrangement”

to provide that not only “collection systems,” but also

contractual arrangements for tire collection would be

appropriate. The requirement for the tires to be removed from

the vehicle was eliminated36 since it is not applicable to off-

specification tires. The revised definition is sufficient to

encompass the agency’s intent in describing these programs and

continues to ensure that these scrap tires are not discarded and

are handled as valuable commodities through arrival at the

combustion facility. Further, the addition to the new

categorical non-waste provision at 40 CFR 241.4(a)(1) eliminated

the need for the previous scrap tire provision at 40 CFR

241.3(b)(2)(i),37 (which has been removed and reserved in today’s

final rule) therefore, the reference to that provision was

36 The related tire provision at 241.4(a)(1) allows for tires that are off-specification or are removed from vehicles. 37 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: “(b) The following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.”

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removed in the definition. The agency proposed to revise the

definition as follows: “Established tire collection program

means a comprehensive collection system or contractual

arrangement that ensures scrap tires are not discarded and are

handled as valuable commodities through arrival at the

combustion facility.”

The definition in today’s final rule includes the revisions

to the definition we proposed in December 2011. In addition, the

agency is including in the definition “tires that were not

abandoned and were received from the general public at

collection program events.” This revision is being made based on

comments received on the proposed rule as discussed below. Under

today’s revised definition, established tire collection programs

could also include a “contractual arrangement.” If, for example,

the state is sponsoring special events where they take tires

back from the general public, those tires would also be

included. Thus, the definition in today’s final rule is

“Established tire collection program means a comprehensive

collection system or contractual arrangement that ensures scrap

tires are not discarded and are handled as valuable commodities

through arrival at the combustion facility. This can include

tires that were not abandoned and were received from the general

public at collection program events.”

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While the agency did receive comments on the specific

proposed changes described above, a number of commenters

rephrased or restated previous arguments which conclude that any

tires burned for energy recovery are not wastes, even if

previously discarded. Conversely, one commenter reiterated its

previous arguments which conclude that all used tires are waste,

even if burned for energy recovery. Today’s rule is responding

only to the specific proposed revisions to the regulations and

the requests for comment in the proposal. For the response to

other issues, refer to the record for the 2011 NHSM final rule

(76 FR 15456). Many of the commenters who provided comments on

tires intertwined the “established tire collection program”

definition issues with the related topic of the categorical non-

waste provision for scrap tires. For a discussion of those

comments, refer to the response to comments for the categorical

non-waste provision for scrap tires (section III.D.3.a.). The

EPA is not reopening its decision that these scrap tires are not

wastes. That decision, however, justifies a categorical

exclusion where there is not a need to make case-by-case

determinations regarding discard in the first instance and the

legitimacy criteria.

Comment: Several commenters mentioned that, in some cases,

the public individually takes tires to state-run tire collection

program events. These are tires that the general public owns and

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were typically removed from their vehicle. These are not

abandoned tires. These collection events, in some cases, are

held by the combustor under the state’s environmental program

oversight. In those cases, the combustors enter into agreements

with local communities to hold these events during which local

residents are allowed to bring tires to facilities to be

recycled, including used as alternative fuels. The scope of tire

collection programs also may allow the public to take used tires

which they may have stored in their garages, or elsewhere on

their property, directly to a combustion facility – in many

cases a cement kiln.

Under the EPA’s current definition of tire collection

programs, the commenters said it is not clear whether these

tires would qualify as those collected under an “established

tire collection program.” Commenters generally agreed that these

tires are not abandoned and should be utilized as non-waste

fuels without processing.

Response: The EPA agrees with the commenters that tires

that have not been discarded and are collected directly from the

public at tire collection events are intended to qualify for the

40 CFR 241.4(a)(1) requirement to be “managed under the

oversight of established tire collection programs.” The agency

agrees that these tires are not abandoned and when collected

under established tire collection program events, they are

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considered to be non-waste fuels, just as the other tires

handled by established tire collection programs are non-waste.

To make this point clear, the EPA has modified the regulatory

language. Please refer to the Response to Comment document for

more details on these collection events and the responses.

2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels

Under the December 2011 proposed rule, revisions to the

contaminant legitimacy criterion for NHSMs used as fuel provided

details on how contaminant comparisons could be made in

practice. The proposal maintained the fundamental approach of

the March 2011 final rule, but the proposed criterion better

reflected the EPA’s intent to allow certain flexibilities when

making contaminant comparisons.

First, the proposal replaced “contaminants” with the phrase

“contaminants or groups of contaminants” to clarify that, when

deciding how to compare contaminants between NHSMs and

traditional fuels, persons do not have to make comparisons on a

contaminant-by-contaminant basis in all cases. When technically

reasonable, comparisons may be made on a group of contaminants-

by-group of contaminants basis.

The December 2011 rule also proposed to codify language

from the preamble to the March 2011 final rule clarifying that

when selecting which traditional fuel(s) a unit is designed to

burn, persons are not limited to the traditional fuel the unit

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is currently permitted to burn. Persons may choose any

traditional fuel the unit can burn or does burn, whether or not

it is permitted to burn such fuel.

In addition, the proposed regulations included text

confirming that, when comparing contaminant levels between NHSMs

and traditional fuels, persons are not limited to data from the

specific traditional fuel being replaced. National surveys of

traditional fuel contaminant levels are one example of another

acceptable data source. Neither the March 2011 final rule nor

the December 2011 proposed rule required persons to compare

contaminants in their NHSM to contaminants in the specific

traditional fuel source they burn (or would otherwise burn). As

an example, the proposal noted that persons who would otherwise

burn coal may use any as-burned coal available in coal markets

in making a comparison between the contaminants in their NHSM

and the contaminants in coal—they are not limited to coal from a

specific coal supplier they have used in the past or currently

use.

Finally, the proposed regulations included text confirming

that, when comparing contaminant levels between NHSMs and

traditional fuels, persons are not limited to comparing average

concentrations. Traditional fuel contaminant levels can vary

considerably and the full range of contaminant values may be

used.

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Two other issues arose prior to the December 2011 proposed

rule that, while not leading to specific regulatory changes in

the proposal, still merited a discussion in the proposal. The

first issue was that contaminant legitimacy criterion

determinations do not require testing contaminant levels, in

either the NHSM or an appropriate traditional fuel. Persons can

use expert or process knowledge to justify decisions to either

rule out certain constituents or determine that the NHSM meets

the contaminant legitimacy criterion. The second issue was that

persons may use data from a group of similar traditional fuels

for contaminant comparisons, provided the unit could burn each

traditional fuel. The idea grows from the “designed to burn”

concept explained in the March 2011 final rule and codified in

today’s final rule, and it allows a person with a unit that can

or does burn similar traditional fuels (e.g., anthracite,

lignite, bituminous and sub-bituminous coal) to group those

traditional fuels when making contaminant comparisons.

The EPA believes that comments have not changed the basis

for making the decisions to expressly allow grouping of

contaminants, to interpret “designed to burn” to mean can burn

or does burn regardless of permit status, and to affirm that

persons can use ranges and national surveys of traditional fuel

data when making contaminant comparisons between NHSMs and

traditional fuels. Comments have also not changed the agency’s

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basis for making the decisions that testing is not required and

that persons can group similar traditional fuels for the

purposes of contaminant comparisons. Thus, the EPA is adopting

the reasoning from the proposal and revising the contaminant

legitimacy criterion for NHSMs used as a fuel to incorporate

these concepts.

The EPA has decided, however, to make one modification to

the proposed contaminant legitimacy criterion based on comments

received and information in the rulemaking record. The final

criterion issued today includes additional language clarifying

the appropriate use of ranges when making contaminant

comparisons between NHSMs and traditional fuels. To use the full

range of contaminant values in traditional fuels, persons should

also account for the variability in NHSM contaminant levels.

Additional details and rationale for the proposed revisions

concerning the grouping of contaminants, the meaning of designed

to burn, and the use of ranges and traditional fuel data in

making contaminant comparisons are discussed in section

III.D.2.b, section III.D.2.c, and section III.D.2.d below.

Additional reasoning for keeping the rule provisions as proposed

and for any modifications to the proposed language are described

in the responses to comments included in these sections.

a. General Comments on the Revised Contaminant Legitimacy

Criterion

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The EPA is not responding to issues that the agency decided

in the March 2011 rule and has not reopened for comment.

Specifically, the agency has previously discussed and did not

solicit comments in this rule on why the concept of legitimacy

is important in determining whether a secondary material is

genuinely recycled or is, in fact, discarded.38 The agency has

also previously discussed and did not solicit comments in this

rule on why contaminant comparisons to traditional fuels are an

appropriate and mandatory factor in determining legitimacy for

NHSMs used as fuels in combustion units.39 The agency has also

previously discussed and did not solicit comments in this rule

on why the “comparable to or lower than” standard is more

appropriate than the “not significantly higher than” standard.40

The agency has also previously discussed that the NHSM Rule

differs from the DSW Rule in that it is tailored specifically

for application to NHSMs used in combustion units.41

Comment: Industry commenters overwhelmingly supported the

proposed revisions to the contaminant legitimacy criterion,

stating that the revisions would help provide regulatory

certainty and give the regulated community more confidence in

their self-determinations.

38 See 75 FR 31870. 39 See 75 FR 31871-31872. See also, 76 FR 15524-15525. 40 See 75 FR 31872. See also, 76 FR 15523. 41 See 75 FR 31870.

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Environmental groups, on the other hand, expressed concern

that the combination of flexibilities present in the proposed

revisions to the contaminant legitimacy criterion will allow

facilities to compare contaminant levels in C&D debris and other

wood waste to the highest contaminant levels found in coal, even

if the facility is not permitted to burn coal. They believed

that this should not be permitted and argued that C&D wood

should not contain contaminant levels higher than found on

average in virgin biomass.

State comments were mixed, with one commenter supporting

the proposed revisions and another commenter expressing concern

that the revisions would weaken the states’ permitting

authorities and create an incentive for combustors to burn

dirtier traditional fuels.

Response: The EPA has decided to retain the concepts

proposed to the contaminant legitimacy criterion because these

changes more accurately reflect the EPA’s intent under the March

2011 final rule. The agency maintains that these concepts are

reasonable and provide a necessary degree of certainty for

persons seeking to comply with the rule. This is explained in

more detail in sections III.D.2.b (groups of contaminants),

III.D.2.c (meaning of designed to burn), and III.D.2.d

(allowable contaminant comparisons) of this preamble.

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At the same time, comments from both industry and

environmental groups have highlighted, in the agency’s opinion,

a need for additional clarity in the regulatory text on the

appropriate use of ranges when making contaminant comparisons

between NHSMs and traditional fuels. Accordingly, the EPA has

made a minor adjustment to the criterion to ensure that ranges

are not used inappropriately in contaminant comparisons (i.e.,

the highest traditional fuel contaminant values should not be

compared to average NHSM contaminant values). See section

III.D.2.d of this preamble for a more detailed description of

this specific change to the contaminant legitimacy criterion.

The agency disagrees with state concerns that the NHSM rule

will weaken the states’ permitting authorities. State permitting

authorities must still approve permit changes and this final

rule does not affect discretion of the permitting authorities in

acting on requests for permit modifications. The agency also

disagrees with state concerns that the NHSM rule will create an

incentive for combustors to burn dirtier traditional fuels. The

EPA understands how restricting contaminant comparisons to

traditional fuels the unit currently burns could provide an

incentive for the facility to burn traditional fuel with high

contaminant levels. When facilities do not actually have to burn

that traditional fuel to make comparisons, however, that

incentive is effectively removed.

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Comment: One commenter requested that the proposed

revisions to the contaminant legitimacy criterion be added to

each option for demonstrating that NHSMs are non-wastes when

used in combustion units, whether it is the on-site

documentation, the EPA petition process or the categorical non-

waste determination process proposed in 40 CFR 241.4.

Response: Revisions to the contaminant legitimacy criterion

codified today in 40 CFR 241.3(d)(1) apply to all options for

demonstrating that a NHSM is not a solid waste when used as a

fuel in a combustion unit. The revised legitimacy criterion is

embedded in the self-implementing options outlined in 40 CFR

241.3(b)(1) for use within the control of the generator and 40

CFR 241.3(b)(4) for NHSMs that are processed and then used in a

combustion unit. The revised legitimacy criterion is also

embedded in the optional EPA petition process outlined in 40 CFR

241.3(c). The revised legitimacy criterion is also referenced as

a factor to be considered in the categorical non-waste

determination process outlined in 40 CFR 241.4.

Comment: Several commenters expressed concern that the

proposed revisions to the contaminant legitimacy criterion,

although an improvement over the 2011 Final NHSM Rule, may not

provide the regulated community with enough information to be

confident in their compliance status. Two commenters noted that

the EPA has overlooked the analytical complexities inherent in

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the contaminant legitimacy criterion and the many opportunities

it creates for disagreement between facility operators and

regional and state regulators. One of these commenters asked the

EPA to both define the term ‘comparable’ and clarify sampling

and analytical methodologies to be used when measuring

contaminant levels. Other commenters advised the EPA to increase

predictability as much as possible by developing a disciplined

process for making contaminant comparisons and providing real

time transparency for such decisions.

Similarly, two commenters expressed concern that even after

a source makes a fuel determination, the EPA could take a

different view of the NHSMs and conclude that they were solid

wastes. The risk sources face is noncompliance with the CAA and

these commenters contended that the issue is too critical for

the EPA to leave the contaminant legitimacy criterion so vague.

Over time, as the EPA develops a record for decisions

(particularly comparable contaminant determinations), one of

these commenters urged the EPA to establish a database and

immediately post determinations for other sources to review.

Other commenters supported the proposed revisions to the

contaminant legitimacy criterion and indicated that they

provided sufficient clarification. One commenter noted that

changes to the language of the criterion and the additional

clarification provided in the preamble to the December 2011

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proposed rule provide key additional detail on making

contaminant comparisons and allow additional flexibility where

appropriate. The same commenter urged the EPA to maintain that

flexibility if the agency develops additional guidance on making

contaminant comparisons in the future.

Response: The EPA has retained the approach included in the

proposed rule that provides information on how contaminant

comparisons can be made and the agency will continue to make its

traditional fuel data and legitimacy determinations transparent

through the EPA website.42

The agency recognizes the need for regulatory certainty, a

need that has been addressed by revisions to the definition of

contaminants and the contaminant legitimacy criterion in today’s

final rule. Contaminants have been specifically listed,

additional clarity on NHSMs/traditional fuel comparisons has

been provided and several comparison methodologies have been

provided in the preamble as examples that could be used by the

regulated community. Comments from the regulated community have

been supportive both of these changes and of the agency’s

efforts to update traditional fuel data that can be used for

42 The EPA maintains a NHSM webpage with current information on contaminant levels in traditional fuels, examples of legitimacy determinations and other information at http://www.epa.gov/epawaste/nonhaz/define/index.

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contaminant comparisons.43 In addition, a number of

interpretative letters have been written that address specific

fact situations as presented by a specific facility and these

letters have been posted on the EPA’s website.44 These letters

serve as examples of acceptable ways to demonstrate legitimacy.

The EPA must balance the need for regulatory certainty,

however, with the need for flexibility, which many commenters

also believe is important. As the agency has previously

discussed, the legitimacy criteria must be flexible enough to

account for future changes in commodities, technologies, markets

and fuel prices.45 Previous comments have stressed the preference

for a qualitative approach, and the agency has agreed, noting

that numerical specifications may be impractical due to the

multiplicity of fuels and ingredients.46 The agency has also

previously discussed that a numerical definition of ‘comparable’

would be impractical given differences in the typical

concentration levels of various contaminants, choosing instead

to offer several examples.47 While the agency will consider

future guidance on contaminant comparisons, it has determined

that no one approach is appropriate for every legitimacy

43 Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, can be found at http://www.epa.gov/epawaste/nonhaz/define/index. 44 See NHSM rule website http://www.epa.gov/epawaste/nonhaz/define/index.htm 45 See 75 FR 31870. 46 See 75 FR 31871. 47 See 76 FR 15524 and 15542.

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determination given the variety of traditional fuels, NHSMs and

combustion units that currently exist and will likely increase

in the future.

Comment: One commenter noted that both the March 2011 NHSM

final rule and the proposal implicitly place the burden on the

combustion facility to determine if a fuel derived from NHSMs

meets the legitimacy criteria. In the utility industry, the

commenter explained, it is common practice for utilities to rely

on fuel marketers to establish and verify fuel quality, and the

regulatory burden on utilities combusting such secondary

materials as fuels could be reduced if the EPA clarified the

circumstances under which a facility would be entitled to rely

on the fuel quality representations of its suppliers. The

commenter suggested that the EPA clarify that a utility may rely

in good faith on the representations of its suppliers that NHSMs

meet the codified legitimacy criteria, or, alternatively, that

utilities be required only to periodically test the quality of

NHSM-derived fuels obtained from third parties to rely on their

suppliers’ representations.

Response: The EPA notes that while fuel suppliers may

provide their customers with documentation supporting a

legitimacy determination, persons who burn NHSMs are ultimately

responsible for the materials burned at their units. As stated

in the proposed rule, however, the agency adopts as its decision

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for this final rule that initial assessments would not need to

be repeated as long as the facility continues to operate in the

same manner and use the same type of NHSM as when the original

assessment was made.48

b. Grouping of Contaminants

The December 2011 proposed revision to the contaminant

legitimacy criterion for NHSMs used as a fuel began with the

following sentence: “The non-hazardous secondary material must

contain contaminants or groups of contaminants at levels

comparable in concentration to or lower than those in

traditional fuel(s) which the combustion unit is designed to

burn.” The phrase ‘or groups of contaminants’ was not present in

the language from the March 2011 NHSM Final Rule but was

included in the December 2011 NHSM Proposed Rule to clarify that

groups of contaminants could be evaluated in determining whether

a NHSM meets the contaminant legitimacy criterion.

In particular, the proposed rule noted that groups of

contaminants in NHSMs could be compared to similar groups in

traditional fuels where the grouped contaminants shared physical

and chemical properties that influence their behavior in the

combustion unit prior to the point where emissions occur.

Volatility, the presence of specific elements and compound

structure were three such properties identified in the proposal

48 See 76 FR 80481.

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and one approach to grouping contaminants was shown that

included groups for TOX, nitrogenated HAP, VOCs, SVOCs, dioxins

and furans, PCBs, PAHs and radionuclides. The agency also noted

that persons may consider other groupings that they can show are

technically reasonable.

Grouping of contaminants is a standard practice often

employed by the agency as it develops regulations. In fact, the

monitoring standards included in the CAA sections 112 and 129

regulations also utilize the grouping concept and they apply to

the same combustion units impacted by the NHSM rule (i.e.,

industrial, commercial and institutional boilers and process

heaters and CISWI units). For example,

• Volatile hydrocarbons and semi-volatile hydrocarbons can both be expected to result from incomplete combustion; therefore, the emission standards promulgated under the CAA regulations are grouped into one category: CO.49

• Halogenated organics are expected to contribute to emissions of dioxin and acid gases (HCl and HF); therefore, the emission standards promulgated under the CAA are grouped into two categories: D/F and HCl.50

• Nitrogenated compounds are expected to contribute to emissions of NOx; therefore, the emission standards

promulgated under the CAA are grouped into one category: NOx.

51

In addition, a number of the seemingly “individual”

pollutants listed in sections 112 and 129 of the CAA are

49 Area Source Boilers NESHAP, Major Source Boilers NESHAP, and Commercial and Industrial Solid Waste Incinerators NESHAP. 50 Major Source Boilers NESHAP and Commercial and Industrial Solid Waste Incinerators NESHAP. 51 Commercial and Industrial Solid Waste Incinerators: NESHAP.

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actually classes of structurally-related compounds (e.g., PCBs,

POM, D/F, cyanide compounds, cresols, glycol ethers,

radionuclides, xylenes, antimony compounds, arsenic compounds,

beryllium compounds and cadmium compounds).

All comments discussing the agency’s proposal to expressly

allow the grouping of contaminants supported the agency’s

position. Thus, the EPA is adopting the language from the

proposal and revising the contaminant legitimacy criterion for

NHSM used as a fuel to allow contaminants to be compared on a

contaminant-by-contaminant basis or, where reasonable, on a

group of contaminants-by-group of contaminants basis. Any

additional reasoning for keeping the revision as proposed,

without modification, is described in the responses to comments

below.

Comment: In general, comments overwhelmingly supported the

ability to group contaminants when making contaminant

comparisons in accordance with the legitimacy criteria.

Commenters stated that codification of this concept would

provide regulatory certainty and allow for more meaningful

comparisons, similar to the manner in which the EPA measures

emissions at combustion units. Commenters noted that the ability

to group contaminants will facilitate compliance because most

existing test methods, including the EPA methods, call for the

grouping of analytes. Commenters believed that the grouping

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concept is an appropriate mechanism to recognize the variability

in contaminant levels inherent in fuels. Commenters also

appreciated the examples of appropriate contaminant groups

provided in the proposed rule along with the ability to compare

other technically reasonable groups (76 FR 80477-80480).

Two commenters stated that each mention of the word

“contaminants” should be changed to “contaminants or groups of

contaminants” in the regulatory text to further clarify that a

comparison to groups of contaminants is intended.

Response: The EPA has retained the language specifically

allowing grouping in the contaminant legitimacy criterion for

NHSMs used as a fuel. The EPA adopts the reasoning in the

December 2011 rule as its final reasoning, as further supported

with reasoning discussed in the comment responses below. While

the EPA has retained the language allowing the grouping of

contaminants, the agency does not consider it necessary to

change every instance of “contaminant levels” and “contaminants”

to “contaminants or groups of contaminants” in order to make it

sufficiently clear that contaminant grouping is allowed. The

agency also notes that not all contaminants are necessarily

intended to be grouped, including individual elemental

contaminants, asbestos, CO and phosphine.52

52 See 76 FR 80478, Tables 7 and 8.

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Comment: The ability to group metal contaminants was

suggested by several commenters. One commenter held that all 11

metals should be specifically included as one group. Another

commenter noted that with the exception of Hg, all metals should

be grouped. Yet another commenter suggested that metals could be

grouped into a volatile metals group and a non-volatile metals

group.

Response: First, we would note that the agency is not

limiting groups to the specific approach suggested in the

proposed rule. The tables in the proposed rule suggest, but do

not limit persons to, an approach, including groups for TOX,

nitrogenated HAPs, VOCs, SVOCs, dioxins/furans, PCBs, PAHs and

radionuclides, with other contaminants left to be evaluated on

an individual contaminant-by-contaminant basis. Flexibility

exists for persons to consider other appropriate groups that

they can show are technically reasonable, with additional text

in the proposal stating that other groups should share physical

and chemical properties that influence behavior in the

combustion unit prior to the point where emissions occur.

Volatility, the presence of specific elements and compound

structure are three such properties.53

However, we do not consider the grouping of total metals to

be appropriate. Specifically, metals vary across all three

53 See 76 FR 80477.

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parameters—volatility, the presence of specific elements and

compound structure—that were discussed as appropriate to

consider when constructing contaminant groups. First, many

factors influence metal volatility in combustion units, and to

the extent that trends in metal volatility have been recognized,

a wide disparity exists between metals. Mercury, as one

commenter noted, is highly volatile, more so than any other

metals listed in the contaminants definition. Metals can be

grouped into volatile, semi-volatile and low-volatile

categories, but it is important to note that these distinctions

can vary based on design differences in combustion units,

operating temperatures, the physical form and species of the

metal and the presence of chlorine.54,55 Second, each metal

clearly contains different elements. Finally, each metal is

already a group of any compound containing the particular

element, encompassing a wide array of compound structures. In

the absence of other suggested grouping criteria or information,

the EPA does not consider total metals to be an appropriate

group.

Comment: One commenter provided a numerical example of VOC

contaminant levels in fuel oils to illustrate the importance of

54 EPA. 2001. “Risk Burn Guidance for Hazardous Waste Combustion Facilities.” EPA530-R-01-001. July. 55 Clarke, L.B. and L.L. Sloss, 1992. “Trace Elements – Emissions from Coal Combustion and Gasification.” IEACR/49. IEA Coal Research, London. July.

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grouping. The commenter cited the traditional fuel tables

provided on the EPA website, stating that toluene and xylenes

are present in fuel oils at concentrations up to 380 ppm and

3,100 ppm, respectively. If a NHSM had the concentrations

reversed, explained the commenter (380 ppm xylene and 3,100 ppm

toluene), the ability to group VOCs would then allow the NHSM to

meet the contaminant legitimacy criterion. The commenter

reasoned that this is appropriate because both toluene and

xylenes are beneficial components of fuel.

Response: The EPA disagrees with this interpretation of the

grouping concept. Unless concentration data for a group of

contaminants (e.g., VOCs) come from the same fuel source, adding

together the concentrations of individual constituents (e.g.,

toluene and xylene) within that group may yield a total

concentration beyond what would be considered a normal part of a

legitimate fuel. Using the example cited by the commenters, some

fuel oils have been found to have up to 380 ppm toluene and

other fuel oils have been found to have up to 3,100 ppm xylene.

Because the toluene and xylene concentrations were taken from

different fuel oils, however, this does not prove that a single

fuel oil in existence actually has VOC levels as high as 3,480

ppm (380 + 3,100).

The agency notes that VOC levels higher than 3,480 ppm,

have been found in fuel oil -- concentrations of one VOC alone

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(hexane)have been found as high as 10,000 ppm -- and the point

of this discussion is to clarify a methodology rather than a

number for acceptable VOC levels in NHSMs.56

We would also note that while the agency considers VOCs to

be an appropriate contaminant group to use when making

contaminant comparisons, it does not base that decision on

whether or not toluene, xylenes and other VOCs are “beneficial

components of fuel.” The decision that toluene, xylene and other

VOCs, which the agency notes are pollutants listed in CAA

section 112(b), are an appropriate group is based on the fact

that they share similar physical and chemical properties that

influence their behavior in the combustion unit prior to the

point where emissions occur.

c. Meaning of Designed to Burn

The December 2011 proposed revision to the contaminant

legitimacy criterion for NHSMs used as a fuel included the

following statement: “In determining which traditional fuel(s) a

unit is designed to burn, persons can choose a traditional fuel

that can be or is burned in the particular type of boiler,

whether or not the combustion unit is permitted to burn that

traditional fuel.” The idea that “designed to burn” means “can

56 Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011 can be found at http://www.epa.gov/epawaste/nonhaz/define/index. EPA intends to update this document as additional data becomes available, and if persons have data measuring traditional fuels for groups of VOCs, or for other contaminant groups, they are encouraged to provide the agency with such data.

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burn or does burn” was included in preamble text to the March

2011 final rule. The December 2011 rule proposed to include this

concept, which is only applied under the NHSM rule to aid in the

selection of appropriate traditional fuel(s) for contaminant

comparisons, in regulatory language.

The March 2011 final rule explained that in determining

which traditional fuel(s) the owner or operator of the boiler

unit would make a comparison to with respect to contaminant

levels, the agency would allow any traditional fuel(s) that can

be or is burned in the particular type of boiler. The agency

reasoned that this approach was the most appropriate since the

NHSM would be replacing the use of particular type(s) of fuel

that could otherwise be burned.57

The December 2011 proposal further explained that

contaminants are compared between NHSMs and traditional fuels to

assist in making a determination whether or not the NHSM is

being discarded when combusted, not to regulate which

traditional fuel a combustor should choose to burn. For the

purposes of making a discard determination, the proposal

reasoned that differentiating between “can burn” and “does burn”

was not relevant.

The agency did note in the proposed rule, however, that for

a unit to be able to burn a traditional fuel, it would need an

57 See 76 FR 15542.

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appropriate feed mechanism (e.g., a way to load solid fuel of a

particular size into the unit) and the ability to adjust

physical parameters to ensure spatial mixing and flame stability

per unit specifications.

Because most combustion units can burn different—but

related—traditional fuels, the agency discussed in the proposal

that broad groups of similar traditional fuels may be used when

comparing contaminants. The most common traditional fuel

categories burned at major source boilers are coal, wood, oil

and natural gas, as evidenced by data submitted to the EPA’s

OAQPS.58,59

To further clarify the impact of the proposed “designed to

burn” language on contaminant comparisons, potential categories

for coal, wood and oil were further described in the proposal. A

coal group was proposed that could include data on anthracite,

lignite, bituminous and sub-bituminous coal. A wood or biomass

group was proposed that could include data on unadulterated

lumber, timber, bark, biomass and hogged fuel. An oil group was

proposed that could include data on fuel oils 1-6, diesel fuel,

58 EPA, Office of Air Quality Planning and Standards (OAQPS), Emissions Database for Boilers and Process Heaters Containing Stack Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and ICR No. 2286.03 (Version 7). December 2011. http://www.epa.gov/ttn/atw/boiler/boilerpg.html#TECH. 59 The fuel analysis information in this OAQPS database is one example of a “national survey” of traditional fuel information, as referenced in the final contaminant legitimacy criterion issued today at §241.3(d)(1)(iii).

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kerosene and other petroleum based oils.60 In cases where a unit

can burn traditional fuels from several categories, such as a

boiler that can burn coal or biomass, the proposal noted that

contaminant comparisons could be made using data from either

fuel category.

The ability to compare contaminants in a NHSM, under the

NHSM rule, to contaminants in any traditional fuel that could be

burned does not change the fact that once burning occurs,

emissions standards are determined under the Boiler MACT or

CISWI rule by the particular fuel (or fuel blend) that is

burned. Whether each rule focuses on what ‘could be burned’ or

on what ‘is burned’ is determined by the rule’s purpose and the

order in which decisions must be made. Together, these factors

explain why the NHSM, Boiler MACT, and CISWI rules take

different approaches to account for individual combustion units

that burn multiple fuels.

Specifically, the NHSM rule must first determine which

NHSMs can be burned in CAA section 112 units (i.e., boilers) and

which can only be burned in CAA section 129 units (i.e.,

incinerators). When making such a waste or non-waste

determination, the NHSM rule cannot always predict what fuel

would otherwise be burned (multiple options may exist).

60 EPA has determined that an oil group should not include unrefined crude oil or gasoline, as neither is typically burned in combustion units subject to the CAA sections 112 or 129 standards.

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Accordingly, the rule allows contaminant comparisons to be made

to any traditional fuel the unit could burn. The Boiler MACT or

CISWI rule must then determine how to regulate emissions from

the unit, by which point it is clear what fuel is actually being

burned. Accordingly, these rules can and do establish

subcategories of units, each with different emissions standards.

The EPA has considered the comments received, as explained

below, but has not changed the basis for its interpretation of

the “designed to burn” concept. Thus, the EPA is adopting the

language from the proposal and revising the contaminant

legitimacy criterion for NHSMs used as a fuel to allow persons

making contaminant comparisons to choose a traditional fuel that

can be or is burned in the particular type of boiler, whether or

not the combustion unit is permitted to burn that traditional

fuel. Any additional reasoning for keeping the revision as

proposed, without modification, is described in the responses to

comments below.

Comment: Industry commenters generally supported the

agency’s proposal to codify the previously stated meaning of

“designed to burn” within the contaminant legitimacy criterion

for NSHMs used as fuels. These commenters welcomed the

regulatory certainty provided by the revision and described it

as a practical and appropriate recognition that some units can

burn multiple traditional fuels.

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Environmental groups, on the other hand, expressed concern

that the proposed definition of designed to burn would allow

contaminants in C&D wood to be compared to those in coal instead

of virgin wood.

One state commenter also expressed concern that allowing

comparisons to any fuel the unit could burn, including fuels

they are not permitted to burn, would weaken the states’

permitting authorities and create an incentive for combustors to

burn dirtier traditional fuels so that they could compare NHSMs

to fuels with higher contaminant levels. An industry commenter

also mentioned that such an approach would reward facilities

that burn dirtier fuel and suggested that the agency remove the

entire “designed to burn” concept from the rule.

Response: Based on a review of the comments, the EPA has

retained the proposed revision to the contaminant legitimacy

criterion for NHSMs used as fuels clarifying that, for the

purpose of determining traditional fuel(s) to which a NHSM may

be compared, the meaning of “designed to burn” may be broadly

interpreted to include any traditional fuel that could be

burned, regardless of facility permit status. The agency

disagrees that this interpretation of “designed to burn” would

incentivize the burning of dirtier fuels or weaken the states’

permitting authorities.

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The EPA finds that allowing combustors to compare NHSMs to

any traditional fuel a unit can or does burn is both practical

and appropriate under the statutory definition of solid waste.

Although not all combustion units can burn multiple traditional

fuels, some units can and, indeed, do rely on different fuel

types at different times based on availability of fuel supplies,

market conditions, power demands and other factors. Under these

circumstances, it would be arbitrary to restrict the combustion

for energy recovery of NHSMs with contaminant levels comparable

to or lower than that of one traditional fuel the unit could

choose to burn solely because contaminant levels are higher than

that of a second traditional fuel the unit could also choose to

burn if fuel supplies, market conditions, power demands, or

other factors change. Such an approach would be impracticable

and not consistent with the agency’s intent. It would also be

inconsistent with the concept of discard, since a facility

burning a NHSM with the same contaminants as another fuel it

could also be burning should not be considered to discard that

NHSM based on its contaminant levels.

The agency has also determined that restricting comparisons

to traditional fuels the unit is permitted to burn is

unnecessary. The fact that a facility is not currently permitted

to burn a particular traditional fuel does not mean it could not

be permitted to burn that traditional fuel in the future. For

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this reason, we do not believe it is reasonable to limit the

comparison to permitted traditional fuels. Furthermore, such a

restriction could have the unintended consequence of combustion

facilities across the country seeking permit modifications

solely to facilitate contaminant comparisons for this rule.

State permitting authorities must still approve permit changes

and this final rule does not affect the discretion of the

permitting authorities in acting on requests for permit

modifications.

In addition, the EPA has determined that restricting

contaminant comparisons to traditional fuels the unit currently

burns could provide an incentive for the facility to burn

traditional fuel with high contaminant levels. When facilities

do not actually have to burn that traditional fuel to make

comparisons, that incentive is effectively removed.

Comment: One commenter asked the agency to specifically

acknowledge that certain categories of boilers are designed to

burn a variety of fuels, noting that stoker boilers, fluidized

bed combustors and boilers with suspension burners, in

particular, should be on such a list.

Response: The agency has decided not to specifically list

which combustion units are designed to burn which fuels for two

reasons. First, the owner or operator of a combustion unit has a

better understanding than the agency does of what that

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particular unit is designed to burn. Second, the agency is

concerned that creating such a list will limit the flexibility

of combustors with other types of units.

Comment: One commenter noted that if the EPA considers it

inappropriate to compare liquid fuels to solid fuels, the agency

offers no justification for its position. The commenter argued

that liquid to solid comparisons should be allowed because most

cement kilns and many other industrial furnaces have the

capacity to burn either solid or liquid fuels. The commenter

described the December 2011 proposed rule as ambiguous with

regard to this issue and recommended that if a combustion unit

is designed to burn both a liquid fuel and a solid fuel, then

the liquid to solid comparison should be “appropriate.”

Response: EPA agrees with the commenter that if a unit can

burn both a liquid traditional fuel and a solid traditional

fuel, then comparison of an NHSM to either fuel would be

appropriate. The revised contaminant legitimacy criterion

clarifies how the “designed to burn” concept may be interpreted

for the purposes of determining traditional fuel(s) to which a

NHSM may be compared, and the Agency has determined that this

revision is sufficient to allow appropriate comparisons to be

made between solid NHSMs and liquid traditional fuels, and vice

versa. The agency does not expect these circumstances to hold

true for all combustion units, however, and reiterates that this

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would only be appropriate when the unit can in fact burn

multiple traditional fuels used to make such comparisons.

Comment: Several industry commenters addressed the topic of

what it means to be able to burn a traditional fuel in a

combustion unit. The preamble to the recent proposed rule noted

that combustion units would need an appropriate feed mechanism,

as well as the ability to ensure the fuel is well mixed and keep

flame temperatures within unit specifications, to be able to

burn a traditional fuel.61 Two commenters opposed the agency’s

interpretation of what it means to be able to burn a traditional

fuel in a combustion unit, stating that the agency provides no

explanation of why feed mechanisms are relevant to whether or

not a unit can burn a particular fuel. Both commenters also

noted that when NHSMs are used as a fuel in combustion units,

the focus on what a unit is “designed to burn” in the first

place is irrelevant to whether discard is occurring. Another

commenter explained that the same exact material could then be a

solid waste in one case and a fuel in another case, depending on

who is using the material.

A third commenter supported the agency’s interpretation of

what ‘can burn’ means, stating that the fate and emissions of a

contaminant, whether it is contained in a traditional fuel or a

material being considered for legitimacy, are as dependent on

61 See 76 FR 80481.

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the design of the combustion unit as they are on the fuel

matrix. The commenter explained further that units should be

considered able to burn several types of fuels as long as each

type is within the design criteria of the feed system, the

combustion chamber and any downstream pollution control device.

Response: The EPA disagrees with those commenters

questioning the relevance of what fuels combustion units are

designed to burn in the context of the legitimacy criteria. If a

NHSM does not contain contaminants at levels that are comparable

to or lower than those found in any traditional fuel that a

combustion unit could burn, then it follows that discard could

be occurring if the NHSM were combusted. Whether contaminants in

these cases would be destroyed or discarded through releases to

the air, they could not be considered a normal part of a

legitimate fuel and the NHSM would be considered a solid waste

when used as a fuel in that combustion unit.62

The reason we analyze what a unit is designed to burn is to

decide the traditional fuel(s) to which contaminants should be

compared. This comparison is then used as an aid to decide

whether the NHSM is being legitimately used as a fuel or whether

excess contaminants show that the burning is waste treatment. If

a facility compared contaminants to a traditional fuel it cannot

burn and that fuel is highly contaminated, a facility would then

62 See 76 FR 15523.

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be able to burn excessive levels of waste components in NHSMs as

a means of discard. Regardless of any fuel value in the

material, it would be a waste.

Once this concept is established, certain factors are

relevant to how we decide what a facility is designed to burn.

The ability to burn a fuel in a combustion unit does have a

basic set of requirements, the most basic of which is being able

to get the material into the combustion unit. The agency

reaffirms in today’s final rule its interpretation from the

proposal that to be able to burn NHSMs, a combustion unit should

also be able to ensure the material is well mixed and maintain

temperatures within unit specifications. Without these basic

limits, there would be no point in distinguishing between fuels

a unit is or is not “designed to burn,” and every combustion

unit would be considered “designed to burn” any combustible

material. Clearly, that is not the agency’s intent. As

illustrated by one of the commenters, when a unit cannot burn a

fuel according to its own design specifications, excess air

pollutants form and are likely to be discarded as emissions.

Thus, the agency acknowledges that whether or not a NHSM is a

waste may depend on the unit burning the material.

Comment: One commenter asked for clarification on the issue

of unit modifications. If a boiler hypothetically could be

modified in any way to combust a different traditional fuel, the

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commenter noted, then a comparison to that fuel should be

permissible to demonstrate that the NHSM is not a waste.

Response: The EPA disagrees with this comment. As long as

the modification remains hypothetical in nature, it stands to

reason that the unit cannot yet burn the additional traditional

fuel and the only reason it is comparing a NHSM to the dirtier

fuel is to allow more waste input into the combustion unit.

However, if the unit is actually modified to accept additional

types of traditional fuels, then the owner or operator of the

combustion unit can consider those traditional fuels in

evaluating the NHSM for the contaminant legitimacy criterion. In

this situation, such behavior shows that the combustor is

serious about burning the other fuel and is willing to make the

investment so that it can be burned properly instead of simply

trying to gain comparison to a dirtier material.

Comment: In the proposed rule, EPA specifically addressed used

oil stating: “Used oil is a special case and does not need to

undergo the contaminant comparison. If it meets the

specifications in 40 CFR part 279.11, it is a traditional fuel.

If it does not meet the specifications (i.e., it is ‘‘off-spec’’

oil), it is a solid waste under the 2011 NHSM final rule.” 76 FR

80481, fn. 44. Some commenters argued that off-spec used oil

fuel, however, could satisfy all of EPA’s legitimacy criteria,

including a contaminant comparison with coal, a traditional

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fuel. Thus, if a combustion unit is “designed to burn” both coal

and oil, the facility should be able to use coal as the

traditional fuel for the purposes of determining whether the

contaminants are comparable—even when the NHSM at issue is off-

spec used oil, as defined in 40 CFR part 279.11.

Response: The Agency agrees with the commenter that

contaminants in off-spec used oil burned for energy recovery in

facilities that are designed to burn coal may be compared to

coal for purposes of determining whether the off-spec used oil

is a waste or non-waste product fuel. Accordingly, for purposes

of waste/non-waste determinations, coal or oil, including on-

spec used oil can be used as the traditional fuel identified for

comparison of contaminants to meet the legitimacy criterion for

units designed to burn both fuels. Some combustion units are

designed to burn multiple fuels, such as both coal and oil,

including on-spec used oil. Under these circumstances, the

Agency agrees that the rules allow the comparison of contaminant

levels to either traditional fuel. That is, to be designated as

a non-waste, the off-spec used oil contaminant levels must be

comparable to or lower than coal when coal is the traditional

fuel used for comparison.

EPA no longer finds, as stated in Footnote 44 of the

proposed rule, that off-spec used oil is always a waste for

facilities that are designed to burn coal. Off-spec used oil

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continues to be a waste, however, for facilities that are not

designed to burn coal because off-spec used oil contains

contaminant levels that are not comparable to on-spec used oil.

EPA also notes that in the preamble to the March 2011 rule (p.

15506), the Agency specifically rejected the comparison of off-

specification used oil contaminants to coal. That discussion,

however, was in the context of a general contaminant comparison

for units that burn only fuel oil. Coal may not be the

comparison material for all off-specification used oil, but only

for those facilities that are designed to burn coal as provided

in the definition of this rule. Finally, we want to make clear

that EPA has not modified the part 279 regulations for

management of used oil, and thus, burning of off-spec used oil

for energy recovery is still subject to those rules, including

the requirement that off-spec used oil can only be burned in

certain units (see 40 CFR 279.61(a)).63

Comment: Commenters argue that the EPA has not adequately

addressed how units designed to burn only NHSMs are to comply

with the contaminant legitimacy criterion. The commenters

63 Off-specification used oil can only be burned in the following types of units: (1) industrial furnaces, as defined in 40 CFR 260.10; (2) the following boilers, as defined in 40 CFR 260.10—industrial boilers located on the site of a facility engaged in a manufacturing process where substances are transformed into new products, including the component parts of products, by mechanical or chemical processes, utility boilers used to produce electric power, steam, heated or cooled air, or other gases or fluids for sale, and used oil fired space heaters provided that the burner meets the provisions of 40 CFR 279.23; and (3) hazardous waste incinerators subject to regulation under subpart O of 40 CFR parts 264 or 265.

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explained that, under the rule structure as proposed, a NHSM may

be classified as a waste simply due to a lack of a traditional

fuel for comparison purposes. Comments acknowledge that the

agency discussed the issue in the preamble to the proposed rule

but the commenters disagree that the discussion provided any

solution. Finally, commenters specifically requested that the

EPA acknowledge the fact that a combustor designed for a

particular NHSM fuel is dispositive that the NHSM is being

legitimately burned for energy recovery.

Response: The EPA disagrees with the assertion that the

agency has failed to provide a solution for units designed only

to burn NHSMs. The EPA also disagrees with the assertion made by

commenters that the fact that a combustor has designed a

combustion unit for a particular NHSM fuel is dispositive that

the NHSM is being legitimately burned for energy recovery.

The EPA acknowledges and is aware of units built

specifically to burn NHSMs. One example is facilities built to

burn resinated wood. The EPA notes that units built to burn such

NHSMs are likely to be able to burn similar traditional fuels.

Using the example of units built to burn resinated wood, the EPA

considers it reasonable to assume that these units could also

burn clean wood and, therefore, could make comparisons to that

traditional fuel. The agency also notes that it is not aware of

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any units—and commenters have not identified any such units—that

can burn only NHSMs.

The EPA has nonetheless provided what it considers to be a

reasonable solution. As explained in the preamble to the

proposed rule, the EPA advises combustors faced with such a

situation to compare solid NHSMs to solid traditional fuels,

such as coal or biomass, liquid NHSMs to liquid traditional

fuels, such as oil, and gaseous NHSMs to gaseous traditional

fuels, such as natural gas.64 In light of the explanation of

“designed to burn” codified in the final contaminant legitimacy

criterion, as well as industry comments that many combustion

units can burn multiple types of fuel, the agency believes that

its suggested approach adequately addresses the issue.

Finally, the EPA acknowledges that combustion units can and

have been designed specifically to burn NHSMs and that such

units can recover energy. The agency notes, however, that

persons can and have also designed incinerators to dispose of

certain waste materials and that such units can also recover

energy. The agency, therefore, does not consider it dispositive

that if combustion units are designed to burn a specific

material, that material must be a legitimate non-waste fuel.

d. Contaminant Comparisons Allowed

64 See 76 FR 80481.

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The proposed revision to the contaminant legitimacy

criterion for NHSMs used as a fuel included the following

statement: “In comparing contaminants between traditional

fuel(s) and a non-hazardous secondary material, persons can use

ranges of traditional fuel contaminant levels compiled from

national surveys, as well as contaminant level data from the

specific traditional fuel being replaced.” The March 2011 final

rule did not discuss the use of ranges when evaluating

contaminant data, nor did it discuss the use of traditional fuel

data from national surveys.

The December 2011 proposed rule included these concepts to

clarify that persons are not required to adhere to a single

comparison methodology, nor are they required to compare

contaminants in their NHSMs to contaminants in the specific

traditional fuel source they burn (or would otherwise burn). In

both instances, the additional language clarifies, but does not

change the intent, of the March 2011 final rule.

Regardless of the specific methodology chosen, a comparison

will have to be made for each contaminant or group of

contaminants between the NHSM and a traditional fuel or

traditional fuel group. Generators or combustors can use either

traditional fuel data collected by the EPA or their own data for

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traditional fuel comparison values.65 Generators or combustors

are responsible, however, for providing NHSM comparison values

in cases where testing is conducted. Examples of acceptable NHSM

data could include both laboratory test results from a specific

generator or combustor and industry-recognized values provided

by a national trade organization.

Given data for a particular traditional fuel, the EPA noted

in the proposal that many combustors would choose to base the

traditional fuel comparison value on the upper end of its

statistical range and that this approach was reasonable.

Anything less could result in “traditional fuel” samples being

considered solid waste if burned in the very combustion units

designed to burn them. This was not the agency’s intent in the

March 2011 final rule.66 Given that selection (i.e., the range

for traditional fuel contaminant values), the agency noted that

acceptable NHSM comparison values would include the upper end of

a statistical range, a calculation involving the mean and

standard deviation or perhaps a single data point in situations

where data are limited. The proposal reasoned that it would not

be appropriate to compare an average NHSM contaminant value to

65 The EPA maintains an NHSM webpage with current information on contaminant levels in traditional fuels, examples of legitimacy determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index. 66 Traditional fuels, as defined in §241.2, are not required to meet the legitimacy criteria, and this scenario is only used to explain the logic behind basing a traditional fuel comparison value on the upper end of a statistical range.

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the high end of a traditional fuel range, as the existence of an

average implies multiple data points from which a more suitable

statistic (e.g., range or standard deviation) could have been

calculated.

If each NHSM comparison value is comparable to or lower

than its corresponding traditional fuel value, the material

would be considered to meet the contaminant legitimacy

criterion. An initial assessment would not need to be repeated,

explained the proposal, provided the facility continues to

operate in the same manner and use the same type of NHSMs as

when the original assessment was made.

Despite presenting several approaches for calculating NHSM

comparison values, such as the upper end of a statistical range

or a calculation involving the mean and standard deviation, the

proposal did not preclude other reasonable methodologies. In the

context of an inspection or enforcement action, the agency will

evaluate the appropriateness of alternative methodologies and

data sources on a case-by-case basis when determining whether

the contaminant legitimacy criterion has been met.

The EPA noted in the proposal that contaminant testing is

not required and that process knowledge may be sufficient for

particular contaminants in particular NHSMs. Even when

analytical testing is not necessary, the EPA’s regulations

governing recordkeeping for units subject to emissions standards

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for boilers and process heaters issued pursuant to CAA section

112 require keeping a record to document the basis of non-waste

determinations under the part 241 criteria (including the

contaminant legitimacy criteria). See 40 CFR 40 CFR

63.11225(c)(2)(ii) for area source boilers and 40 CFR 40 CFR

63.7555(d)(2) for major source boilers.

The EPA believes that the comments have not changed the

basis for its decision to allow the use of ranges and surveys of

traditional fuel contaminant levels. Nor have comments changed

the agency’s position that similar traditional fuels may be

grouped for comparison purposes and that testing is not required

in all cases. Thus, the EPA is adopting the reasoning from the

proposal and adjusting the contaminant legitimacy criterion

accordingly for NHSM used as a fuel.

The EPA has decided, however, to make a modification to the

regulatory language of the December 2011 proposed rule based on

comments received. The final criterion issued today includes

additional language clarifying the appropriate use of ranges

when making contaminant comparisons between NHSMs and

traditional fuels. Consistent with the rationale provided in the

preamble to the proposed rule, additional language now states

that in order to use the full range of contaminant values in

traditional fuels, persons should also account for the

variability in NHSM contaminant levels. Any additional reasoning

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for finalizing the revision with or without suggested

modifications is described in the responses to comments below.

Comment: Industry comments supported the proposed changes

expressly allowing the use of ranges and national surveys of

traditional fuel data, as did one state comment. One commenter

stated that these changes provide a more practical approach to

meeting the contaminant legitimacy criterion that recognizes the

inherent variation of contaminants in NHSMs and traditional

fuels. Several commenters supported the use of ranges by

repeating the EPA’s rationale from the proposal that using

anything lower would logically result in a determination that

some traditional fuels should not be burned in combustion units

designed to burn those fuels. Another commenter stated that

these clarifications describe appropriate methods of handling

data that are naturally variable and will result in fewer non-

waste materials being arbitrarily identified as wastes.

Environmental groups opposed the use of ranges to evaluate

contaminants, expressing concern that C&D wood contaminant

levels would be compared to the highest contaminant levels for

coal. These commenters suggested that averages or medians be

used instead.

Response: Based on our review of the comments received, the

EPA is retaining the approach outlined in the proposed rule to

expressly allow the use of ranges and traditional fuel data from

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national surveys. As discussed in the proposed rule, the EPA

considers it reasonable to allow combustors to use the range of

contaminant levels present in traditional fuels because anything

less could result in “traditional fuel” samples being considered

solid waste if burned in the very combustion units designed to

burn them. For this reason, the agency disagrees with comments

stating that combustors should be limited to use of the average

or median concentrations.

The EPA acknowledges that the revisions adopted as final in

today’s rule would allow C&D wood contaminant levels to be

compared to the highest contaminant levels for coal. The

commenters do not specify, however, what C&D wood contaminant

levels (averages or ranges) they are concerned would be compared

to the highest levels in coal. The agency points out that the

proposed revisions were not intended to allow average C&D wood

contaminant levels to be compared to the highest levels in coal.

In light of the concerns expressed by these commenters, the EPA

has modified the proposed language to provide additional

assurance that such average-to-maximum comparisons, which the

agency has already determined are inappropriate, will not be

allowed under today’s final rule. The EPA has decided that such

comparisons are inappropriate because, following the logic

stated in the March 2011 final rule, average-to-maximum

comparisons do not demonstrate that contaminants in these cases

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could be considered a normal part of a legitimate fuel and are

not being discarded.67

Today’s final criterion makes clear that the full range of

traditional fuel contaminant values can only be used if persons

also consider some measure of variability in the NHSM

contaminant data. This will help to ensure that average to

maximum comparisons will not be used to justify the combustion

of NHSMs as non-waste fuels.

Comment: Industry comments supported the concept discussed

in the proposed rule that the contaminant legitimacy criterion

does not require the testing of contaminant levels in NHSMs in

all cases. The proposal noted that persons can instead use

expert or process knowledge to justify decisions to rule out

certain constituents. The proposal also noted that initial

assessments would not need to be repeated, provided the facility

continues to operate in the same manner and use the same type of

NHSMs as when the original assessment was made. One commenter

asked the EPA to confirm these statements, explaining that this

policy will result in fewer NHSMs being arbitrarily identified

as wastes. Another commenter stated that the flexibility

provided by this policy will help ensure that regulated entities

with varying levels of sophistication can better document that

their NHSMs are non-waste fuels.

67 See 76 FR 15523.

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Environmental groups, on the other hand, commented that the

EPA must require testing for contaminants, citing the extremely

variable nature of C&D wood as a problem. Commenters expressed

concern that a large amount of material is going to be generated

as abandoned and foreclosed housing is torn down, and the

potential for liberating vast amounts of lead and other urban

toxics, to say nothing of arsenic and chromium from pressure-

treated wood, has never been higher.

Response: Based on a review of the comments received, the

EPA is maintaining its position that contaminant testing is not

required in all situations. Requiring testing in some situations

is unnecessary. Where a NHSM generator, processor or combustor

knows a contaminant will either not be present or be present at

a level below that in the appropriate traditional fuel or

traditional product, the agency believes it is a reasonable and

practical policy to allow persons to rely on either process

knowledge or previous testing of the same material.

The agency notes that there will be instances where testing

is conducted and comparisons will have to account for the

variability of contaminant levels in NHSMs, including lead

concentrations in C&D wood. The agency also notes that today’s

final rule does not change its previously stated position that

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chromated copper arsenate-treated wood (CCA wood) would likely

have contaminant levels not comparable to traditional fuels.68

Comment: One commenter requested that the EPA clarify what

it means by the upper end of the statistical range. Citing the

EPA’s statement in the proposal that “it makes sense to base the

traditional fuel comparison on the upper end of the statistical

range,”69 the commenter asked for confirmation that the maximum

values in the traditional fuel data set can be used for

comparison with a NHSM since all data corresponding to the

traditional fuel are valid for comparison, not just values that

are below some arbitrarily determined statistical parameter.

Response: The word ‘ranges’ in the proposed contaminant

legitimacy criterion has been changed to ‘the full range’ in the

final criterion issued today. This term more clearly indicates

the agency’s intent to include all true values in between the

minimum and the maximum.

The agency has also separated the concepts of ranges and

traditional fuel survey data in the regulatory language in order

to make the criterion more transparent. The pertinent regulatory

text in today’s final rule reads as follows: “In comparing

contaminants between traditional fuel(s) and a non-hazardous

secondary material, persons can use data for traditional fuel

68 See 75 FR 31872. 69 See 76 FR 80481.

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contaminant levels compiled from national surveys, as well as

contaminant level data from the specific traditional fuel being

replaced. To account for natural variability in contaminant

levels, persons can use the full range of traditional fuel

contaminant levels, provided such comparisons also consider

variability in non-hazardous secondary material contaminant

levels.”

Comment: Several commenters noted that the agency proposed

to allow the use of “national” surveys of traditional fuel data

in the proposed contaminant legitimacy criterion and included

several international data sources in its “Contaminant

Concentrations in Traditional Fuels: Tables for Comparison”

document.70 Several commenters asked that the word ‘national’ be

removed from the contaminant legitimacy criterion. Other

commenters asked that the EPA either remove the word ‘national’

or clarify that international data and surveys from other

nations are also acceptable data sources.

Response: The EPA has retained the proposed language,

including the word “national,” which expressly allows national

surveys of traditional fuel data to be used in contaminant

comparisons for NHSMs used as a fuel in combustion units. A

statement that national surveys can be used does not preclude

70 The EPA maintains a NHSM webpage with current information on contaminant levels in traditional fuels, examples of legitimacy determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index.

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the use of appropriate international data. In fact, as the

commenters recognize, the EPA included several international

sources in its analysis of traditional fuels. These

international sources were limited, however, to situations where

no data or minimal data could be found from national sources or

the agency had no reason to believe that data from national

sources would be significantly different. At issue is whether

the data are representative of traditional fuels that are

purchased and burned at operating boilers in the United States.

The agency has decided that it is reasonable to assume that

national surveys of traditional fuels contain information about

fuels purchased and burned at operating boilers in the United

States.

Comment: One commenter argued that the traditional fuel

database compiled by the EPA should include the USGS coal data

from not only the United States but also from around the world

because those fuels are currently in use.

Response: The EPA has maintained its decision not to

reference the USGS COALQUAL database in its traditional fuel

contaminant tables. It is the agency’s understanding that the

COALQUAL database contains trace metal analyses for coal and

associated rocks taken directly from coal beds throughout the

United States and that not all of these coal beds are currently

being mined. It is also the agency’s understanding that as-mined

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coal typically undergoes a series of processing steps, including

crushing, screening, washing and physical separation techniques

to remove rock and other impurities prior to being blended into

clean, graded and uniform coal products suitable for use in

commercial boilers.71

In comparison, the EPA contaminant tables referenced by

commenters are based largely on a comprehensive dataset that

contains approximately 32,000 records of pre-combustion

contaminant analyses performed on coal, wood, biomass and fuel

oil samples that were actually used as fuel at boilers across

the country. Thus, the agency has decided that the EPA dataset

is more representative of contaminant levels in coal actually

burned at operating boilers than the COALQUAL database. As a

result, the EPA has decided not to use the COALQUAL database in

developing the tables posted on the agency’s website.

We would also note that the decision not to use USGS data

is consistent with the agency’s position that product fuel oils,

as opposed to virgin crude oil, should be measured for purposes

of contaminant comparisons. As stated in the proposed rule,

neither unrefined crude oil nor gasoline is typically burned in

combustion units regulated by CAA sections 112 and 129.

71 Speight, J.G. Synthetic Fuels Handbook: Properties, Process, and Performance. McGraw-Hill, 2008. pg 141.

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Similarly, as-mined coal is not typically burned in combustion

units regulated by CAA sections 112 and 129.

Comment: One commenter suggested that for each contaminant

or group of contaminants, either the UCL of the mean at a 90

percent confidence level or the UPL at a 90 percent confidence

level for NHSMs could be compared to the maximum value for the

appropriate traditional fuel.

Response: First, we would note that in the preamble to the

recent proposed rule, the EPA indicated that when compared to

the full range of contaminants in traditional fuels, suitable

measures of NHSM contaminants would include the upper end of a

statistical range, a calculation involving the mean and standard

deviation or perhaps a single data point in situations where

data are limited. The agency also noted that the discussion in

the preamble did not preclude “other reasonable methodologies.”72

With respect to the specific approaches suggested by the

commenters, the EPA agrees with the approach of comparing the

UPL at a 90 percent confidence level for each contaminant or

group of contaminants in NHSMs to the maximum value for each

contaminant or group of contaminants in the appropriate

traditional fuel. Specifically, the UPL is an indicator of what

a future measurement would be. In the context of NHSM

contaminant levels, the UPL taken at a 90 percent confidence

72 See 76 FR 80481.

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level would yield a number, and a combustor could be confident

that 90 percent of the time, the next measured contaminant level

would be at or below that number. The UPL considers both the

variability of the contaminant distribution and the uncertainty

surrounding what the true mean is. The comment suggested taking

a maximum value for traditional fuel contaminant levels and

comparing it to the UPL at a 90 percent confidence level.

Because both metrics account for the variability present in

contaminant distributions, the EPA would consider this approach

to be a reasonable methodology.

The EPA does not agree, however, with an approach of using

the UCL of the mean. That is, the UCL of the mean, regardless of

the confidence level, is a measure of the mean and does not

adequately factor in the variability present in both NHSMs and

traditional fuel contaminant levels. The metric would be

appropriate for a mean to mean comparison, but that is not what

the commenter suggested. The comment suggested taking a maximum

(which takes full advantage of the variability present in

traditional fuel contaminant levels) and comparing it to a mean

(which ignores the variability present in NHSM contaminant

levels). The EPA does not consider this approach to be a

reasonable methodology.

To be clear, the EPA does not object to the use of

confidence limits, or to the use of the UCL of the mean, on

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their own grounds. However, the agency believes it is

inappropriate to make a comparison of mean contaminant levels in

NHSMs to maximum contaminant levels in traditional fuels.

Comment: One commenter suggested that the EPA allow

entities to compare contaminants between NHSMs and traditional

fuels on a pound of contaminants per Btu (lb/MMBtu) basis, as

the agency said it would consider in the preamble discussion to

the 2011 NHSM Final Rule.73

Response: The EPA maintains its position that a direct

comparison of contaminant levels, as opposed to the lb/MMBtu

approach, is the most appropriate means of comparing contaminant

levels. As was noted in the 2011 NHSM Final Rule, however, the

agency may still consider the lb/MMBtu approach as guidance is

developed for implementation.


as Fuels

The new provisions at 40 CFR 241.4 were proposed to allow

the EPA to list categorically certain NHSMs as non wastes --

when used as a fuel in a combustion unit. Based on these

categorical non-waste determinations, facilities burning NHSMs

that qualify for the provision will not need to demonstrate that

the NHSM meets the legitimacy criteria on a site-by-site basis.

The EPA has determined that these NHSMs are categorical non-

73 See 76 FR 15525.

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wastes as described and are not discarded when used as a fuel in

a combustion unit.

Categorical non-waste determinations only apply, however,

to NHSMs that are burned as a fuel in combustion units for the

purpose of recovery energy. Burning a NHSM fuel in a combustion

unit for energy recovery assumes a set of basic design

requirements that ensures excess air pollutants are not formed

and emission requirements under the CAA are met. As discussed in

section III.D.2.c of this preamble, such basic design

requirements include abilities to load the material into the

unit, ensure the material is well mixed and maintain

temperatures within unit specifications. For example, burning a

whole tire in a boiler that is only designed to burn tires that

are chipped and/or dewired would not be considered a fuel burned

in a combustion unit for the purpose of recovering energy. The

agency is not including specific regulatory text regarding this

point since we believe it is understood that to be burned for

energy recovery, the combustion unit must be able to burn the

NHSM as a fuel.

a. Scrap Tires

In the December 23, 2011, NHSM proposed rule, the EPA

proposed the following regulatory language under 40 CFR 241.4

Non-Waste Determinations for Specific Non-Hazardous Secondary

Materials When Used as a Fuel: “Scrap tires that are not

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discarded and are managed under the oversight of established

tire collection programs, including tires removed from vehicles

and off-specification tires.” Further, the addition of this

provision (40 CFR 241.4(a)(1)) eliminated the need for the

previous scrap tire provision at 40 CFR 241.3(b)(2)(i),74 which

has been removed and reserved in today’s final rule. Today’s

rule finalizes the proposed provision without changes.

Comment: One commenter stated that, “in its latest

proposal, EPA eliminates the need for scrap tires to meet its

legitimacy criteria and simply declares that scrap tires

collected under an established tire collection program are not

waste regardless of whether they meet the agency’s legitimacy

criteria.”

Response: The EPA disagrees with this comment. The EPA has

not eliminated the legitimacy criteria for scrap tires. The

categorical determination for scrap tires (as with all the

categorical determinations in this rule) simply applies the

agency’s non-discard determination, made in the March 2011 rule

and not reopened in this amendment, to the general category so

74 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: “(b) The following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.”

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that case-by-case determinations as to legitimacy would not need

to be made by each facility. For the scrap tire category, scrap

tires managed under established tire collection programs and

used as a fuel need not make case-by-case legitimacy

determinations. Moreover, the commenter has given us no

information that the criteria are not met. In fact, the

commenter simply repeats the argument made in previous

rulemakings that the material is always a waste regardless of

legitimacy criteria.

Comment: Several commenters suggested that scrap tires

should not have more restrictions under 40 CFR 241.4(a) for the

categorical non-waste status than does resinated wood. The non-

waste determination for scrap tires, as proposed in 40 CFR

241.4(a)(1), read “Scrap tires that are not discarded and are

managed under the oversight of established tire collection

programs, including tires removed from vehicles and off-

specification tires.” In comparison, the resinated wood

description, as listed in 40 CFR 241.4(a)(2), is “Resinated

wood.” The commenters reasoned that if all resinated wood can be

non-waste, then all scrap tires should also qualify (regardless

of the origin).

Response: Please see the EPA’s response in the resinated

wood section below (section III.D.3.b of this preamble) relating

to the 241.4(a) criteria for resinated wood and the comparison

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to scrap tires. That response goes into detail explaining why

the extra criteria are not needed for resinated wood and related

discard issues. In addition, as noted previously in the NHSM

rulemaking record (see docket EPA-HQ-RCRA-2008-0329), numerous

tire piles have been created in the past whereas this is not the

case for resinated wood used as fuel. The existence of these

historic tire dumps demonstrates that some tires have not been

treated as a valuable commodity therefore necessitating the

additional discard qualification in regulatory text. The

specific tires described in the categorical determination are

handled as a valuable commodity and do not include discarded

tires.

Comment: A commenter suggested that the EPA should add

“off-specification tire components” to the regulatory language.

This revision would be in addition to the proposed text at 40

CFR 241.4(a)(1) that adds “off-specification tires.”

Response: Off-specification tire components are covered in

the 40 CFR 241.4 categorical non-waste determinations for scrap

tires. The term ‘scrap tire’ is a general term for tires and can

include, for example, whole tires, chipped tires, off-

specification tires or off-specification tire components (i.e.,

tread, sidewall or base) that are removed from vehicles or are

generated by tire manufacturers, including retailers or other

parties involved in the distribution and sale of new tires. This

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formulation was also stated in the December 2011 NHSM proposal75

and is adopted for today’s final rule. The EPA sees no

difference between tires and their various components. Thus, the

EPA does not believe it necessary to modify the rule to include

“off-specification tire components” in the codified definition.

They are understood to be included in the categorical non-waste

provision.

Comment: Many commenters mentioned the difficulty in

complying with the regulations since it is very difficult to

distinguish between tires removed from vehicles (and off-

specification tires) versus tires from other origins. In regard

to this issue, one commenter stated, “a combustor cannot know

the origin of the tire-derived fuel it is buying. In its

response to requests for reconsideration of the CISWI rule, the

EPA responded to this issue by recognizing that it is not

possible for a combustor to know the source of all NHSM fuel and

declined to impose this requirement stating:

"Rather, it is sufficient that the ultimate user verify

that it is obtaining tires from an established tire

collection program, which program can provide the user with

reasonable assurance that it manages tires carefully from

point of collection to point of burning and which does not

75 See 76 FR 80483.

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receive tires which have been abandoned in landfills or

otherwise. 76 Fed. Reg. 28318, 28322 (May 17, 2011)."

Therefore, the commenter requests that the EPA codify this

statement in the NHSM rule and expressly allow combustors to

rely upon certifications of fuel suppliers that the fuel sold is

not a solid waste.

Another commenter said that for the EPA to require a tire

storage facility to maintain separate classifications of tires

(i.e., separating discarded tires from tire dumps from other

tires) is not reasonable, because inspectors and operators would

not be able to tell the piles apart. The EPA’s current

definition of scrap tires would place undue financial hardship

on contractors and storage facilities.

Response: The EPA has decided that a regulatory statement

on this matter is not necessary since the actual requirement for

the combustor to determine where its tires come from when they

are coming from an established tire collection program (or a

contractual agreement) is provided for under the CAA and

interpretations provided for that regulation. For example, major

source boilers have a recordkeeping requirement for a non-waste

determination at 40 CFR 63.7555 “What records must I keep?”

Within those regulations for major source boilers, it requires

the combustor to demonstrate that NHSMs are a non-waste. To the

extent that a combustor believes it appropriate, they may

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request haulers to verify that the tires would qualify as non-

waste under 40 CFR 241.4 when combusted.

If there is question about the origin of the tires, the EPA

inspectors will not assume that tires are from discarded

sources. As we note in the Federal Register notice (76 FR 28318,

28322), “It is EPA’s position that ultimate users are not

responsible for knowing the source of all tires obtained from an

established tire collection program… EPA does not interpret this

language as requiring knowledge of each individual tire as this

is a practical impossibility… users also should not assume that

tires from established programs which participate in occasional

cleanup days are discarded – both because there is no

information that the tires from the cleanup efforts were

discarded (and these programs are designed to prevent

discarding) and whether the kiln received tires from the

sporadic cleanup days in any case.”

The Federal Register notice that the commenter cited (76 FR

28322) and a related letter to the docket (“Memorandum.

Combustion in a Cement Kiln and Cement Kilns’ Use of Tires as

Fuel.” April 25, 2011, Document ID: EPA-HQ-OAR-2002-0051-3582)

provide sufficient guidance. The agency believes this issue does

not merit additional regulation for the hauler.

b. Resinated Wood

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In the December 23, 2011, proposed rule, the EPA proposed

to designate in regulatory text that resinated wood is not a

solid waste when used as a fuel. In making this determination,

the agency analyzed these materials using the legitimacy

criteria, concluding that resinated wood clearly is managed as a

valuable commodity and has meaningful heating value and is used

as fuel.76 While stating that these materials may not always meet

the regulatory contaminant legitimacy criterion in every

situation, we proposed to list categorically resinated wood as a

non-waste fuel because, after balancing the regulatory

legitimacy criteria and other relevant factors, the EPA

determined that resinated wood that is used as fuel represents

an integral component of the wood manufacturing process and, as

such, is not being discarded when burned as fuel.

Specifically, we noted the extent to which resinated wood

is used as fuels throughout the wood manufacturing industry and

that the use of resinated wood as fuel is essential to the wood

manufacturing process. We also noted the prevalence of wood

product plants that have been designed specifically to utilize

these residuals for their fuel value; in fact many (if not most)

wood products plants would not be able to operate as designed

without the use of these materials. This determination was

previously codified under 40 CFR 241.3 (b)(2)(ii) of the NHSM

76 See 76 FR 80483.

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final rule, provided the resinated wood met the legitimacy

criteria in 40 CFR 241.3(d)(1). However, based on the available

information, as well as how this material is handled and used in

the process, resinated wood is not being discarded when used as

a fuel, and thus, should not be considered a solid waste when

burned as a fuel. The EPA proposed to codify this determination

by categorically listing resinated wood as a non-waste fuel in

40 CFR 241.4(a)(2).77 By specifically listing it as a non-waste

fuel, combustors of this material would not need to demonstrate

that they meet the legitimacy criteria on a site-by-site basis.

The EPA finds that this reasoning is supported by the

entire rulemaking record, as explained in the December 2011

proposal, which rationale is adopted for the final rule as

further supported by responses to comments below. Thus, the

agency has determined to list categorically resinated wood as a

non-waste fuel. In addition, after considering comments received

on the proposal, the agency is revising the definition of

“resinated wood,” as codified in 40 CFR 241.2.

Comment: Most comments on this issue were supportive of a

categorical determination that resinated wood is a non-waste

fuel. One commenter maintained that the record for this

rulemaking clearly establishes that resinated wood is highly

valued within the wood products industry for its high fuel

77 See 76 FR 80483-80484.

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value, stating that “Many facilities rely on mixing of these low

moisture content wood materials with higher moisture content

wood materials to manage and optimize combustion.” This same

commenter also stated that “there exists within the wood

products industry a developed market for purchase and sale of

resinated wood between independent companies.” In fact, many

wood-fired boilers at wood products plants that do not generate

sander dust have been retrofitted with sander dust injection

burners so that sander dust can be properly combusted in those

units, taking full advantage of the heat energy of sander dust.

Another commenter stated that “resinated fuels have been an

integral part of the composite wood product industry’s

production process since the industry was established decades

ago. As such, facilities’ combustion and energy systems were

designed and constructed to utilize most if not all of their own

wood and wood by-products, including resinated trim and sander

dust. Excluding resinated wood fuels from our manufacturing

processes would require significant re-engineering of our

facilities and add insurmountable operating costs in order to

substitute fossil fuels, as well as to transport and dispose of

resinated wood fuels. Any other result would effectively make it

nearly impossible for these manufacturing facilities to continue

operations.” This same commenter also noted that “many of our

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facilities rely exclusively on resinated wood for its fuel and

have limited access to substitutes.”

Another commenter provided two examples of mills that

utilize nearly 100 percent of sander dust, either to create new

product as part of the manufacturing process or as fuel. In

addition, two state commenters supported the proposed

categorical non-waste determination for resinated wood.

Response: Nearly all of the comments received regarding the

proposed categorical non-waste determination were supportive of

categorically listing resinated wood as a non-waste fuel when

burned in combustion units for energy recovery. As noted above,

the agency did receive a few additional examples of how the use

of resinated wood as a fuel is an integral part of the wood

manufacturing industry’s production process (e.g., the

facilities that would have to be significantly re-engineered if

they could not use resinated wood for its fuel value and the

mills that use 100 percent of the sander dust it generates,

either by recycling it back into the process or burning it for

fuel).

Although we received one comment critical of the EPA’s

proposed listing of resinated wood as a non-waste fuel

(addressed below), we did not receive any comments that argued

or suggested that the use of resinated wood as a fuel is not an

integral component of the wood manufacturing process. Thus, we

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agree with commenters who encouraged the EPA to finalize

resinated wood as a categorical non-waste fuel and will finalize

this determination in today’s rulemaking.

Information in the record for this rulemaking clearly

establishes that resinated wood is managed as a valuable

commodity (40 CFR 241.3(d)(1)(i)) and has meaningful heating

value and is used as a fuel in combustion units that recover

energy (40 CFR 241.3(d)(1)(ii)).78 In addition, we generally have

determined that most resinated wood meets the contaminant

legitimacy criterion as well ((40 CFR 241.3(d)(1)(iii)),

although we acknowledge that in some instances these materials

may have levels of formaldehyde that are not comparable to

traditional fuels.79

The EPA confirms the position discussed in the proposal and

adopts it as its final rationale that there are instances where

it is appropriate for the EPA to balance the regulatory

legitimacy criteria with other relevant factors in order to

determine whether a material is a legitimate fuel or is merely

being discarded by being combusted. We have determined that

resinated wood is one such example. Although resinated wood may

not meet the regulatory contaminant legitimacy criteria in every

78 See, e.g., 76 FR 80483. See also background document developed in support of the December 23, 2011, proposed rulemaking titled, “Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support Document” (EPA-HQ-RCRA-2008-0329-1880). 79 Id.

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situation, it is clear that resinated wood is still a

“legitimate” product fuel after one considers how integrally

tied the use of resinated wood as a fuel is within the wood

manufacturing process and industry. Nearly all comments received

on this point concurred with this assessment. Thus, in today’s

final rule, we are codifying the determination that resinated

wood, based on all information and the totality of the

circumstances, is a non-waste when used as a fuel.

Comment: One commenter, however, stated that the EPA’s

proposed categorical determination that resinated wood is a non-

waste fuel is unlawful and arbitrary. The commenter stated that

the EPA is now proposing to simply “exempt” resinated wood

altogether, regardless of who burns it and whether it meets the

legitimacy criteria. According to the comment, the EPA

acknowledges that the formaldehyde levels in resinated wood

would not always meet its contaminant legitimacy criterion –

i.e., would not be comparable to the levels in any fuel that

companies would otherwise burn. The commenter states that the

EPA also acknowledges that burning resinated wood increases the

emissions of formaldehyde, but nonetheless finds that, “In

general the motivation to use resinated wood as a fuel, even

with the slightly higher formaldehyde levels, predominates over

the motivation to dispose of the formaldehyde.” The EPA’s

decision to remove the limits on the exemption for resinated

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wood and to “categorically” declare resinated wood to be a non-

waste – regardless of who burns it, regardless of how

contaminated it is, and regardless of the reality that some

companies may be burning resinated wood as a cheap means of

disposing of their toxic formaldehyde wastes – underscores this

point.

The comment continues that the EPA nowhere claims that

companies burning resinated wood that they have not generated

pay for these materials. Indeed, the EPA does not deny that

these companies are paid to take the resinated wood they burn.

Thus, the EPA provides no reason to believe that the resinated

wood that is burned by a company other than the one that

generated it has not been discarded by the company that

generated it. Even under the EPA’s own view of the meaning of

discard, resinated wood burned by companies other than the

generator of the resinated wood would be waste but for the

agency’s declaration that it is not waste.

The commenter also states that the EPA admits that some

companies may burn resinated wood because they want to dispose

of the formaldehyde it contains (i.e., to dispose of the

contaminated wood rather than to recover energy). Moreover, the

levels of formaldehyde contamination in some resinated wood

would exceed the EPA’s legitimacy criteria, but for the EPA’s

declaration that these criteria do not apply. For these reasons

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as well, resinated wood is discarded even under the EPA’s own

view of what that term means.

Further, the comment states that sources’ alleged

“motivation” for burning a material is to recover energy rather

than to destroy the wood and the contaminants it contains –

assuming arguendo that a source’s motivation can even be

determined – does not show that material is not a waste. Rather,

resinated wood is a waste because it is discarded within the

meaning of RCRA. Notably, the EPA does not suggest that there is

any use for resinated wood that has been discarded other than –

assuming it is a “use” at all – burning it. Moreover,

establishing a “motivation”-based test for whether resinated

wood is or is not a waste conflicts with and defeats the CAA.

Thus, the agency’s categorical declaration that resinated wood

is not a waste is unlawful.

Response: The EPA strongly disagrees with the commenter’s

characterization of its categorical determinations. In making

categorical determinations, the agency is not “exempting” these

materials from regulation as a solid waste (i.e., if not for

this “exemption,” these materials would otherwise be regulated

as solid waste). Rather, the EPA has determined that the

specified NHSMs are not solid waste when used as fuels. Further,

in making categorical determinations, the EPA is not saying that

the legitimacy criteria are not relevant. In proposing the

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categorical non-waste determination for resinated wood, the

agency stated we were “balancing the legitimacy criteria and

other relevant factors based on the fact that resinated wood

residuals that are used as fuels represents an integral

component to the wood manufacturing process and, as such,

resinated wood residuals are not being discarded when burned as

fuels.”80 This remains the agency’s final finding in this rule.

Regarding the level of contaminants in resinated wood, the

agency is not saying that resinated wood is a non-waste fuel

“regardless of how contaminated it is,” as the commenter

suggests. Based on all available information, the agency has

concluded that resinated wood meets the legitimacy criteria for

all contaminants with the possible exception in some situations

of formaldehyde. In focusing specifically on formaldehyde, we

also have stated that we have limited information regarding

formaldehyde levels—that is, resins and adhesives containing

formaldehyde react within the resin curing process leaving “free

formaldehyde at levels less than 0.02 percent (or 200 ppm), but

noted that levels will be reduced further due to new national

rules being developed by the CARB Composite Wood ATCM, per new

Public Law 111-199. Thus, we have not said that contaminants do

not matter. Rather, we have carefully analyzed contaminant

levels in resinated wood and have determined, based both on

80 See 76 FR 80483.

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contaminant levels, as well as how the use of these materials

represents an integral part of the wood product manufacturing

process, that resinated wood materials are a legitimate non-

waste fuel.

Further, we do not concede, as the commenter contends, that

some companies burn resinated wood to destroy contaminants—in

fact, we have determined just the opposite. We have determined

that companies burning resinated wood do so because such an

activity is integrally tied to their production process, not to

dispose of the formaldehyde. This determination is based on that

extent to which resinated wood is used as fuels throughout the

wood manufacturing industry, as well as the fact that the use of

resinated wood as fuel is essential to that industry (i.e.,

plants have been designed to use these materials as fuels and

would be unable to operate if resinated wood was not available

as a fuel source).

Regarding the comments that the EPA acknowledges that

burning resinated wood increases emissions of formaldehyde, the

agency needs to correct this characterization. First, in the

2011 NHSM final rule, we stated that the criterion or test in

determining the contaminant legitimacy criterion is based on the

level of contaminants in the secondary material itself and not

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by comparing the differences in emissions.81 However, responding

to comments we received regarding emission levels associated

with burning resinated wood as a fuel, the agency determined

that the amount of formaldehyde that is emitted from burning

resinated wood residuals is in fact likely to decrease, given

that Public Law 111-199 will reduce formaldehyde levels in these

materials.82

Regarding the commenter’s statement that companies that

burn resinated wood that they have received from offsite do not

pay for it, the EPA disagrees with the argument put forth by the

commenter as the facts in this instance do not support such a

premise.

As noted in the March 2011 final rule, inter-company

transfers of resinated wood residuals are typically managed

through buy-sell contracts and 6 percent of resinated wood

residuals are sold into the fuel market and are used as either

“furnish” (i.e., raw materials) or fuel at the receiving

facilities.83 In addition, the EPA received additional comments

on the proposed rule stating, “…there exists within the wood

products industry a developed market for purchase and sale of

resinated wood between independent companies.”

81 See, e.g., 76 FR 15502. 82 Id. 83 See 76 FR 15500.

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Moreover, while contractual arrangements can be used as

evidence that the material is managed as a valuable commodity

and that discard is not occurring when a material is transferred

beyond the control of the generator, the price of an NHSM is

not, by itself, dispositive of whether the material is or is not

a waste. The main indication that resinated wood residuals are

not solid waste is the fact that they are used as fuels in a way

that represents an integral component to the wood products

industry. As the EPA noted in the March 2011 final rule,

“resinated wood residuals transferred off-site are utilized in

the same manner as self-generated resinated wood residuals

(i.e., contained in the same bins as furnish materials used in

the product, transferred via conveyors or ducts), which the

plants are specifically designed to burn as a fuel, [and

therefore] we agree that this does not constitute discard.”84

The comment that the agency has simply declared that

resinated wood is a non-waste “regardless of who burns it” is a

mischaracterization of this categorical non-waste determination.

Based on all information provided to the agency, we have

determined the use of resinated wood as a fuel is an integral

part of the industry’s production processes and that these

materials are managed as valuable commodities (i.e., fuels),

have meaningful heating value and are used in combustion units

84 Id.

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that recover energy regardless of whether these materials remain

within the control of the generator or are transferred offsite

to another facility. On the other hand, we have no information

that facilities are burning these materials merely to get rid of

them (i.e., discard).

The EPA finds irrelevant the commenter’s statement that the

EPA is looking to a source’s motivation for using a material as

a fuel conflicts with and defeats the CAA. The issue, rather, is

whether motivation is relevant to a waste determination under

RCRA. The D.C. Circuit confirmed the relevance of motivation in

determining whether a recycled material is a waste. See, API v.

EPA, 216 F.3d at 58 (court criticizes the EPA for not saying why

it has concluded whether recycling motivation predominates over

a disposal motivation). In this case, it is clear that the

motivation for burning the resinated wood is to utilize its

inherent value as a fuel and not for disposal. Commenters have

provided the agency with information that facilities generating

and managing resinated wood residuals consider these materials

to be an integral part of their production process—both in the

value these materials provide as being a critical source of

energy as well as being recycled back into the manufacturing

process to create more wood products. Thus, we are not convinced

that a facility that considers the use of resinated wood as a

fuel to be an integral part of its production processes, as has

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been established in the record, is motivated to discard these

materials by burning to get rid of them.

Comment: A few commenters stated that the EPA is not

consistent in how discarded materials are designated as solid

waste. In particular, the commenter stated that the EPA was

proposing to list as a categorical non-waste fuel in 40 CFR part

241.4 resinated wood regardless of whether it is previously

discarded, while the agency would require processing for scrap

tires that have been discarded in landfills.

Response: The agency disagrees that its treatment of

resinated wood is inconsistent with its treatment of scrap

tires. Nowhere does the agency state that resinated wood would

be considered a non-waste fuel “regardless of whether it is

previously discarded.” The EPA, based on all information

available, has determined that resinated wood is not being

discarded when used as fuel, given the fact that resinated wood

residuals that are used as fuels represent an integral component

of the wood manufacturing process. If a shipment of resinated

wood residuals was disposed of in a landfill, it would be a

waste. In addition, if a shipment of resinated wood residuals

were disposed of and later recovered to be used as a fuel, as is

the case with scrap tires that are extracted from landfills,

this would be a different scenario and would not be included

within the categorical listing in 241.4(a)(2).

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As the record clearly shows, resinated wood is routinely

handled and managed as a valuable fuel product within the wood

products manufacturing industry. As noted in the rulemaking

record (see docket EPA-HQ-RCRA-2008-0329), numerous scrap tire

piles have been created in the past and it is a common practice

to recover abandoned tires from tire piles and use them for

fuel. This is not the case for resinated wood.

Comment: While supportive of the agency’s proposed listing

of resinated wood as a non-waste fuel in 40 CFR part 241.4, two

commenters suggested that the agency revise the definition of

“resinated wood” as codified in 241.2. Currently, “resinated

wood” is defined as, “wood products (containing resin adhesives)

derived from primary and secondary wood products manufacturing

and comprised of such items as board trim, sander dust, and

panel trim.” However, these commenters request the EPA to revise

this definition in order to clarify that the “spectrum of

resinated materials currently used as fuels throughout the wood

product manufacturing process are included in the definition.”

Thus, commenters urge the EPA to revise the definition of

resinated wood as follows: “Resinated wood means wood products

(containing binders and adhesives) produced by primary and

secondary wood products manufacturing. Resinated wood includes

residues from the manufacture and use of resinated wood,

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including materials such as board trim, sander dust, panel trim,

and off-specification resinated wood products.”

The suggested revised definition proposes two changes.

First, the suggested definition replaces the phrase “containing

resin adhesives” with the phrase, “containing binders and

adhesives.” The second suggested revision to the definition is

the specific inclusion of “off-specification resinated wood

products.” Commenters have indicated that these materials

include materials that do not meet manufacturing specifications

or are otherwise physically marred or damaged and thus, are not

sold in the marketplace. This class of materials would not be

expected to be chemically different than the resinated wood

products that meet the manufacturing “on-spec” requirements. For

example, off-specification resinated wood products would not be

expected to have higher amount of resins (and therefore

contaminants) than their on-specification counterparts.

Commenters have indicated that off-specification resinated wood

products are identical to their on-specification counterparts

chemically and only differ in that they are do not meet a

manufacturing quality or standard.

Response: The agency recognizes that in order for a

categorical non-waste determination to be meaningful and

effective, it must be clear about the universe of materials that

such a categorical non-waste determination encompasses. Thus, we

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agree with commenters who suggested specific revisions to the

definition of “resinated wood” contained in part 241.2.

Specifically, the EPA agrees that these revisions create a

definition that more accurately captures the scope of resinated

wood and is more representative of the resinated materials

currently used as fuels throughout the wood product

manufacturing process. First, by including the terms “binders”

and “adhesives,” the universe of materials that we consider to

be within this definition should be more clear, as these terms

are widely used and accepted within the wood products

manufacturing industry.

With respect to the inclusion of off-specification

resinated wood products, the EPA finds it appropriate to include

this class within the definition of resinated wood. We note,

however, that to the extent that a facility has reason to expect

that the off-specification wood products are off-spec for

chemical reasons, such that the levels of contaminants are

expected to be greater than their on-spec counterparts, the EPA

would not consider such materials to be within the scope of this

definition. The agency will make this point more clear by

specifying in the definition that the term “off-specification

resinated wood products” are off-spec due to the fact that they

do not meet a manufacturing quality or standard. Thus, in

today’s final rule, we are codifying the definition of resinated

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wood as follows: “Resinated wood means wood products (containing

binders and adhesives) produced by primary and secondary wood

products manufacturing. Resinated wood includes residues from

the manufacture and use of resinated wood, including materials

such as board trim, sander dust, panel trim and off-

specification resinated wood products that do not meet a

manufacturing quality or standard” (emphasis added).

Comment: One commenter noted that there are additional

secondary materials produced by the wood manufacturing industry

that are similar to resinated wood and, thus, should also be

considered a non-waste fuel. The production of flooring and

furniture creates final finishing trim, sander dust and process

breakage that are both solid and resinated wood materials. In

some cases, these materials are coated with finish materials

used to color and protect the finished product. The commenter (a

utility) indicated that their facilities receive these materials

from furniture and flooring manufacturers and utilize them to

offset the fuel load from fossil fuels due to their high heat

capacity. Thus, the commenter requests that the EPA expand its

definition of resinated wood materials to include these

additional wood manufacturing secondary materials as non-waste

fuels or otherwise describe the circumstances under which these

additional materials would be considered a non-waste fuel.

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Response: It is possible that these materials (or some of

these materials) could be within the definition of “resinated

wood,” as codified in 40 CFR part 241.2; however, commenters

have not provided the agency with information regarding the

factors involved in determining whether these additional types

of coated materials are legitimately used as product fuels. That

is, commenters have not provided information regarding whether

these “finishing materials” could have contaminant concerns and

whether they are routinely used as fuels. Subsequent to this

rulemaking, the agency would welcome information regarding these

materials in order to make an informed decision regarding

whether these materials fit within the definition of “resinated

wood.” Alternatively, the commenter may petition the agency to

receive a non-waste determination per the petition process

established in 40 CFR 241.3(c) if the commenter believes that

this material may not be within the definition of “resinated

wood.”

4. Rulemaking Petition Process for Other Categorical Non-Waste

Determinations (40 CFR 241.4(b))

The EPA recognizes that there may be other NHSMs that can

also be considered non-wastes when used as fuels in combustion

units when balancing the legitimacy criteria and other relevant

factors. Thus, under today’s rule, we are finalizing the process

outlined in the proposed rule whereby persons can submit a

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rulemaking petition to the Administrator where they can identify

and request that additional NHSMs be listed in section 241.4.

The petition process is similar to 40 CFR 260.20, where any

person may petition the Administrator to modify or revoke any

provisions of the hazardous waste rules and where procedures

governing the EPA’s action on those petitions are established.

The 40 CFR 260.20 standards reflect normal, informal rulemaking

procedures under the APA and thus, serve as an appropriate model

for the NHSM rulemaking petitions under this section.

In the context of a rulemaking petition under section

241.4(b), any person can petition the Administrator for a

regulatory amendment to identify and request that additional

NHSMs be included on the list of materials in section 241.4(a)

that are not solid wastes when used as a fuel in a combustion

unit. To be successful, the petitioner needs to demonstrate to

the satisfaction of the Administrator that the proposed

regulatory amendment involves a NHSM that has not been

previously discarded (i.e., was not initially abandoned or

thrown away), or if discarded, has been sufficiently processed

into a legitimate fuel. The petitioner must also demonstrate

that the material is used as a non-waste fuel in a combustion

unit because it either meets the legitimacy criteria, or, after

balancing the legitimacy criteria with other relevant factors,

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such NHSM(s) is not a solid waste when used as a fuel in a

combustion unit.

If the applicant believes that the NHSM is a legitimate

product and not discarded despite not meeting the legitimacy

criteria, additional information must be submitted to explain or

describe why such NHSM should be considered a non-waste fuel.

Possible factors to address include, but are not limited to:

• The extent that use of the NHSM has been integrally tied to the industrial production process. Information can include combustor design specifications, the extent that use of the material is integrated across the industry and the extent that use of the NHSM is essential to the industrial process,

• The extent that the NHSM is functionally the same as the comparable traditional fuel, and

• Other relevant factors.

The application is required to include: (1) the

petitioner’s name and address; (2) a statement of the

petitioner’s interest in the proposed action; (3) a description

of the proposed action, including the specific NHSM, the

industry (i.e., NAICS code) and functional use (i.e., industrial

functional code listed in 40 CFR 710.52(c)(4)(i)(C)); and (4) a

statement of the need and justification for the proposed action,

including any supporting tests, studies or other information.

Where such NHSM(s) do not meet the legitimacy criteria, the

applicant must explain why such NHSM(s) should be considered a

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non-waste fuel, balancing the legitimacy criteria with other

relevant factors.

Under this petition process, the Administrator makes a

tentative decision to grant or deny a petition and then publish

notice of such tentative decision, either in the form of an

ANPRM, a proposed rule or a tentative determination to deny the

petition, in the Federal Register for written public comment.

The Administrator could, at its discretion, hold an informal

public hearing to consider oral comments on the tentative

decision. After evaluating all public comments, the

Administrator makes a final decision by publishing in the

Federal Register a regulatory amendment or a denial of the

petition.

Comment: One commenter does not support use of the

legitimacy criteria, as provided in the proposed section

241.4(b)(3) to make a determination. A material which has not

been discarded is, by definition, not a solid waste. However, if

the EPA believes that other factors still should be considered,

then the only other factor which should be considered is whether

the material is being used legitimately as a fuel. The remaining

legitimacy criteria are (and should be) irrelevant.

Response: As discussed in the 2011 NHSM final rule,

“legitimacy” is shorthand for referring to NHSM that are not

abandoned or thrown away, are saved and are reused by being

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burned for their value as a fuel.85 The legitimacy criteria are

the factors needed to be examined to make this determination.

For example, it is relevant how the NHSM is managed and its

heating value since burning materials that have minimal or

limited heating value shows the material is being burned for

discard and not energy recovery. In addition, the extent to

which contaminants are present in NHSMs may also indicate that

the real reason for burning the secondary material is simply to

destroy or discard them—referred to as ‘‘sham’’ recycling. Thus,

the agency is not simply ‘‘punting’’ to its legitimacy criteria

but believes they provide a valid basis for showing that a NHSM

is more commodity-like than waste-like.

Comment: The current petition process is limited to NHSMs

when used as fuels. Absent from this petition process are NHSMs

used as ingredients and previously discarded materials that meet

the fuel legitimacy criteria. We do not understand this

distinction and urge the EPA to expand both the current and

proposed petition processes to allow for non-waste

determinations for a wider range of NHSMs.

Response: In general, the 40 CFR part 241 regulations

establishes a self-implementing approach for NHSM that can

consider site-specific information, if necessary (i.e.,

facilities will make a self-determination of whether the non-

85 See 76 FR 15471.

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hazardous secondary fuel or ingredient in question meets the

regulatory criteria). We note it is the EPA’s intention to

indicate in these rules, as clearly as possible, which non-

hazardous materials used as fuels or ingredients in combustion

units are or are not considered solid waste based on the

criteria laid out in regulatory text. The agency expects this

self-implementing approach will govern the majority of

situations, including NHSMs used as ingredients and NHSMs

processed from previously discarded materials.

We would also note that the regulated community prior to

proposing the December 2011 proposed rule and commenters to that

proposed rule did not provide any instances where ingredients

are combusted or are processed from previously discarded

material that would be a candidate for listing categorically.

Therefore, we do not believe it necessary to modify the proposed

rule to address this situation. However, to the extent that

there are instances where such materials do exist, persons can

always petition the EPA to modify the rules, including allowing

ingredients that are combusted to be categorically listed to

account for such materials.

Comment: In the NHSM Proposal, the EPA recognizes that a

material can have levels of contaminants higher than traditional

fuels, but still be combusted for a legitimate, energy-producing

purpose (see 76 FR 80483 discussing resinated wood). The EPA

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also has proposed that this is true for hazardous secondary

materials as well (see 76 FR 44094, 44122; July 22, 2011).

Notwithstanding this admission, the EPA is not proposing to

amend its legitimacy criterion for contaminants to make it a

consideration, rather than a mandatory criterion. Thus, the

EPA's NHSM Proposal is internally inconsistent. Under 40 CFR

241.3(d)(iii), any material that has contaminants in

concentrations higher than those found in traditional fuels is

automatically considered a waste, no matter how integral the use

of the material is to the manufacturing process or how

legitimate the combustion is to the purpose of energy recovery.

In contrast, under proposed 40 CFR 241.4, EPA recognizes that

materials can have high levels of contaminants and still be non-

waste material being legitimately combusted for energy recovery.

To justify this inconsistency, the EPA argues that it needs to

make a case-by-case determination that a material with higher

levels of contaminants is a non-waste to “prevent sham

recycling” (see 76 FR 80482).

Response: The EPA disagrees with the comment that the mandatory

nature of the self-implementing § 241.3 standards (including the

contaminant legitimacy criterion) for individual facilities is

inconsistent with the non-waste determinations outlined in §

241.4. In particular, the legitimacy criteria (including the

contaminant legitimacy criterion) must be met under the self-

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implementing standards for individual facilities outlined in §

241.3, but the same criteria may be balanced by the EPA with

other relevant factors under the categorical non-waste

determinations outlined in § 241.4.

These differences are necessary and appropriate. Where a

particular NHSM may not meet all the legitimacy criteria

outlined in §241.3(d)(1), but the material is being used as a

legitimate fuel, the agency has decided it is necessary to

require a formal determination (i.e., not a self-implementing

decision) to prevent materials from being burned for discard

under the guise of recycling. Furthermore, the agency has

decided that such a determination should be subject to public

notice and comment. In cases where the difference between

recycling and waste treatment is difficult to distinguish, as is

the case when elevated levels of contaminants are present, the

potential for abuse is likely, and thus, regulatory oversight is

appropriate when making a waste/non-waste determination. This

approach is also consistent with what the EPA proposed for the

hazardous secondary material rule cited by the comment—that is,

the balancing test would be used by the EPA in a petition

process, not as a self-implementing determination.

Comment: One commenter requested that the EPA should

specifically recognize in the categorical petition that the

existence of a supply contract between a generator of NSHMs and

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a combustor, with specifications that the NHSM must meet, should

be considered dispositive evidence that the NHSM is not a waste

and is combusted for energy recovery, not disposal.

Response: We disagree with the commenter that the mere

existence of a contract between the generator and combustor is

dispositive evidence of the material being a non-waste. However,

existence of a contract is a factor to be considered in a

categorical non-waste determination. For example, under 40 CFR

241.4(a)(1), scrap tires managed under established tire

collection programs are a categorical non-waste and the

definition of “established tire collection program” (40 CFR

241.2) explicitly recognizes contracts as evidence that the

material has not been discarded. Specifically, “Established tire

collection program” means “a comprehensive collection system or

contractual arrangement [emphasis added] that ensures scrap

tires are not discarded and are handled as a valuable commodity

through arrival at the combustion facility…”

Comment: The timeframe for which the EPA must grant or deny

the request should be included as well as defining the length of

time of 30 days that these notices will be open to public

comment. What is the legal implication of an “informal public

hearing?” How does this differ from a public information

meeting? If it is “informal,” what is the purpose? What

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administrative procedures apply to comments made during the

“informal public hearing?”

Response: The agency is not imposing a deadline on its

decision to grant or deny a petition, or a specific time period

for public comment, due to the potentially wide range of issues

involved in considering a categorical non-waste petition and

because of the many factors beyond its control. Informal public

hearings, similar to formal public hearings, provide an

opportunity for the public to provide comments and oral

testimony on proposed agency actions . All testimony received

becomes part of the public record. Public meetings, on the other

hand, are less formal; anyone can attend, there are no formal

time limits on statement, and the agency and/or the facility

usually answer questions. The purpose of the meeting is to share

information and discuss issues, not to make decisions.

Comment: The final rule should make clear that the denial

of a petition would not bar the filer of the denied petition

from filing a subsequent petition for the same location and same

materials.

Response: Where the information submitted to make a

categorical non-waste determination has fundamentally changed,

the EPA agrees that a petition to categorically list a NHSM can

be resubmitted for review.

5. Materials for Which Additional Information was Requested

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a. Pulp and Paper Sludge

In the March 2011 NHSM final rule, the EPA concluded that

pulp and paper sludges meet the legitimacy criteria and, thus,

can be burned as a non-waste fuel provided such combustion units

are within the control of the generator in accordance with

section 241.3(b)(1).86 The December 2011 proposed rule discussed

the information we currently have on pulp and paper sludges, and

the additional information that the agency would need in order

to categorically list these materials in 40 CFR 241.4(a) as a

non-waste fuel.87 If such information were provided to the EPA,

the agency would then consider the legitimacy criteria and other

factors relevant to a determination that these sludges are not

solid wastes when combusted.

This categorical listing would put pulp and paper sludges

in the same general grouping as resinated wood residuals. For

resinated wood residuals, the EPA considered that use of that

material as a fuel has been integrally tied to the industrial

production process and is consistent with that of a fuel

product. The proposal discussed similar information that was

86 Pulp and paper sludges almost entirely remain on-site and within the control of the generator when burned as fuels. To the extent that pulp and paper sludges do not remain within the control of the generator and are used as fuels, the petition process established in 40 CFR 241.3(c) could apply to these materials, as appropriate. 87 Additional information needed to categorically list pulp and paper sludges is discussed at 76 FR 80485.

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needed by the agency to support adding pulp and paper sludges to

40 CFR 241.4(a) as a categorical non-waste.

Based on the comments received and information submitted,

the EPA is listing as a categorical non-waste fuel under section

241.4 those dewatered pulp and paper sludges that are not

discarded and are generated and burned on-site by pulp and paper

mills that burn a significant portion of those residuals. Such

residual must be dewatered and managed in a manner to preserve

the meaningful heating value of those materials.

This determination for pulp and paper sludge as a

categorical non-waste represents the agency’s finding that,

after balancing the regulatory88 legitimacy criteria with other

relevant factors, the burning of this material as described in

the categorical listing is a commodity fuel for legitimate

energy recovery and not discard. That is, the agency has

concluded that, for pulp and paper mills that burn a significant

portion, pulp and paper sludges are integral to the mills’

operations and provide a critical source of energy. Such mills

are not burning these dewatered pulp and paper sludges to

discard them but are burning them as a legitimate commodity

88 As the EPA has previously stated (76 FR 15460), the Agency has established regulatory legitimacy criteria which may be used by companies on a case-by-case basis to show that they are not discarding material when used in a combustor. However, for the categorical determination, the Agency has determined that it is appropriate for the Agency, itself, to make the discard determination for material that does not meet the more strict regulatory criteria. Thus, the EPA has developed the categorical determination.

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fuel. These facilities take the steps necessary to dewater the

pulp and paper sludges and to manage the dewatered sludge to

maintain its meaningful heating value and not to dispose of the

sludge. In addition, the agency finds for facilities burning a

significant portion of the dewatered sludge that:

(1) The sludges are managed in a manner that preserves

meaningful heating value and, therefore, meets the managed as a

valuable commodity (241.3(d)(1)(i)).

(2) Dewatered sludge (i.e., dewatered through appropriate

water removal practices, including dewatering presses, rotary

driers, etc.) meets the meaningful heating value and used in

combustion units that recovery energy criterion

(241.3(d)(1)(ii)).

(3) The sludge meets the comparable contaminant criterion

(241.3(d)(1)(iii)).

The fact that these sludges meet the contaminant legitimacy

criterion, in the EPA’s view, show that these sludges when

burned on-site are not being discarded. While the agency is not

defining a specific percentage of dewatered pulp and paper

sludges that would need to be burned to qualify for the

categorical listing in section 241.4, the agency would consider

that the 42 mills that responded to an AFPA survey89 and that use

89 See April 2, 2012, letter from Timothy G. Hunt to James Berlow. A copy of this letter has been placed in the docket for today’s rulemaking.

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dewatered pulp and paper sludge as fuels at a significant rate

(between 70-100 percent of these materials that are generated

and burned) meet the listing description. We also find that

other mills that burn a significant portion of their dewatered

pulp and paper sludges on-site as fuel would qualify for the

listing description.90 For the pulp and paper mills that burn a

relatively small percentage of their dewatered pulp and paper

sludges on-site as a fuel (e.g., the five mills that responded

to the AFPA survey that burn less than 20 percent), the agency

has determined that those sludges are not viewed the same by the

mill operator in that they do not need to rely on them for their

energy value and are not included in the non-waste categorical

listing in section 241.4.

However, there is likely little difference as to how pulp

and paper sludge may be defined under NHSM rules, whether a

categorical or a facility-specific non-waste determination. That

is, such dewatered pulp and paper sludges may still be

considered non-waste fuels when burned as a fuel for energy

recovery at mills that burn a relatively small percentage of 90 While the Agency is not including a specific requirement for pulp and paper mills to document the amount of dewatered wastewater treatment residuals they burn on-site as a fuel, we would recommend that such pulp and paper mills include such documentation in case there are any questions as to whether the pulp and paper mills dewatered wastewater treatment residuals qualifies for the categorical listing in 241.4. As an alternative, the pulp and paper mill can request the Agency to confirm (via letter) that the facility generates and burns on-site a significant portion of pulp and paper sludges such that the facilities pulp and paper sludges are included within the categorical listing.

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these materials, although the rules require those facilities to

document on a facility-specific basis that such sludges are non-

waste fuels. As discussed in the final NHSM rule (76 FR 15488),

dewatered pulp and paper sludges that are burned within the

control of the generator and meet the legitimacy criteria,

likely are non-waste fuels and thus can be burned in units

subject to CAA section 112 requirements.

The agency has restricted the categorical listing to those

dewatered pulp and paper sludges that are burned on-site because

the agency has minimal information on how these NHSMs are

managed when shipped offsite.91

Outlined below are commenters’ responses to the agency

information requests regarding pulp and paper sludges and a

categorical non-waste determination.

Comment: The EPA requested information on how pulp and

paper mill sludge is used as a legitimate fuel and not discarded

at pulp and paper mills and how the material is integrated into

the industrial production process.

In responding to the agency’s request, commenters first

provided a summary of energy needs by the pulp and paper

industry. The commenters indicated that the industry is somewhat

unique in its energy profile and in how individual mills select

91 We note that in the situation where pulp and paper sludges are transferred beyond the control of the generator, a facility can petition the Agency to receive a non-waste determination, as appropriate.

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appropriate fuels to support their energy needs. Most pulp and

paper mill boilers are specifically designed to handle a variety

of fuels; few boilers are designed to burn just

traditional fuel. Even mills with boilers specifically permitted

as pulp and paper sludge boilers also burn other fuels. Over the

years, the industry has recognized the benefits of burning

secondary materials, particularly those generated on-site. These

secondary materials are derived from and have characteristics

similar to traditional fuel, particularly the biomass used to

produce pulp and paper products.

Mills do not usually burn just one type of fuel at any one

time. Some mills rely heavily on coal, others on natural gas or

biomass. According to the commenter, the choice of fuel depends

on availability, cost and need. Hogged fuel or coal may be the

underlying fuel but it is supplemented by other traditional and

non-traditional fuels. This is done in order to meet the energy

needs of the mill but also to address best management practices

for the boiler and meet air quality requirements. If the hogged

fuel is wet, coal or resinated wood may be added to boost heat

value. If the boiler is burning too hot, the addition of pulp

and paper sludge enables the mill to regulate temperature. Pulp

and paper sludge also may be burned because it has the best fuel

value for the price. All of these decisions are based on the

boiler conditions, fuel availability, energy needs, air quality

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requirements, as well as costs, and all are considered when the

energy manager determines the right mix of fuel in any given

day.

As a result, the quantities of different types of fuels

burned over the course of a year differ and the mill may not

burn 100 percent of the available fuel generated during that

year. Not all pulp and paper sludges are burned at a given mill

over the course of a year nor are all recycled process residuals

(old corrugated cardboard rejects) or all hogged fuel. The

commenter emphasized that if only a percentage of a secondary

material generated by the industry is used as a fuel, that it

does not negate its value as a fuel. Rather, it reflects the

realities of running a boiler for which the economic and

operating conditions are interconnected and dynamic.

For example in one mill, the commenter indicated that

combination boilers are designed to burn a wide variety of fuels

efficiently and cleanly. Two mills’ boilers currently burn tire-

derived fuel,92 while one burns waste paper generated at the

mill. They all are capable of burning one or more fossil fuels:

oil (including used oil), coal and gas. The four combination

boilers burn large amounts of biomass, either generated on-site

or purchased commercially. A portion of three of the mills’

92Tire-derived fuel used in the paper industry must be dewired since the wires often clog the feed system. Thus, the industry does not utilize whole tires.

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biomass consists of sludge generated on-site from their

wastewater treatment processes.

One state commenter also indicated that most mills operate

boilers that are specifically designed to handle a variety of

fuels -- few boilers are designed to burn just traditional fuel

and mills do not usually burn just one type of fuel at any one

time. Bark and biomass fuel may be the primary fuel but it is

supplemented by other traditional or alternative fuels.

Secondary materials have been an important alternative fuel

used safely by the mills in the commenter’s state for many

years. Most of that state’s mills' have multi-fuel boilers.

Their fuel handling equipment, mill wastewater treatment systems

and other ancillary equipment were designed to combust

alternative fuels, including pulp and paper sludge. Use of these

fuels reduces reliance on purchased biomass and/or fossil fuels

and provides a vehicle for beneficial reuse of the materials. In

light of the greater stringency of the CISWI regulations, the

state indicated that the mills are likely to landfill

these materials instead of recovering their fuel value if these

materials are considered solid waste under the CISWI standards.

Another industry commenter stated that four of their five

U.S. pulp mills produce wastewater treatment residuals that are

burned in biomass-fired combination fuel boilers. At one mill,

the residual solids are harvested and sold under a purchase

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agreement to an Electric Utility Generating plant burning

various sources of biomass because that mill does not have a

biomass boiler designed to burn the residuals. The residuals are

primary clarifier solids (mostly wood fibers too short for

product use) which are harvested by dewatering through a screw

press. The residuals are stockpiled in a specific managed area

before being trucked to the power company. At that site, the

materials are processed and conveyed with other forms of biomass

for fuel in their biomass boiler. Use of the wastewater

treatment residuals from the mill as a fuel at the purchasing

site is permitted in their air permit.

One commenter indicates that the energy manager at a mill

will determine the approximate amount of different types of

fuels needed to obtain the most energy under the best operating

conditions. As pulp and paper sludge is generated, it is

directed toward the hogged fuel pile or towards other non-fuel

uses. This decision is based on whether the mill’s boiler

is designed and permitted to burn pulp and paper sludge and the

amount is determined by the energy demands on that particular

day.

Another commenter believes that the fact that not all pulp

and paper sludge is combusted at pulp and paper mills is

evidence that the wood products industry only combusts pulp and

paper sludge for legitimate energy recovery and not for

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disposal. According to the commenter, when the pulp and paper

sludge is not needed as a fuel, it is used for non-fuel purposes

or is discarded. When it is combusted, it is combusted for its

energy value as a legitimate fuel.

One mill described by a commenter has elected to divert its

own-make bark to beneficial use as mulch, rather than burning

it, because it is of poorer quality than commercially available

biomass. That same mill has recently invested in a new belt

press which provides high quality sludge as fuel for its

combination boiler. Since the press was installed in 2011, the

percentage of mill sludge burned has increased to 80 percent

from under 50 percent. Currently, the mill is burning more of

the sludge from its process than the bark it also generates.

At another plant, the commenter indicates that sludge is a

by-product of the AST process. Their mills employ primary

clarifiers to separate out solids from wastewater, of which 50

percent is wood fiber, the primary component.93 These solids are

staged in holding or blend tanks prior to drying. In addition to

primary clarifiers and aeration basins, AST systems employ

secondary clarifiers (large, open, circular concrete tanks) in

which biological solids exiting the aeration basin(s) are

93 Washington State Department of Ecology Industrial Footprint Project Waste

Stream Reduction and Re‐Use in the Pulp and Paper Sector, June 2008.

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separated by gravity from wastewater. The process is carefully

regulated to accomplish two objectives: making the water as

clean and free of solids as possible while retaining activated

sludge (active microbes) to re-inject into the biological

treatment stage of the process. As part of this continuous loop,

some activated sludge must be removed from the system to

maintain the optimal population of active microbes for effective

treatment.

After excess secondary sludge is removed from the treatment

loop at three of the mills, it is mixed with primary sludge in

blend tanks prior to being dried on belt presses to a suitable

moisture level for burning or other uses. Sludge is introduced

into the mills’ solid fuel feed systems by means of conveyers

where it becomes thoroughly mixed with other fuels in the

conveyer systems before being introduced into the mills’

combination boilers. At one mill, primary sludge is dried

separately by means of screw presses while secondary sludge is

dried using a belt press. The two fuels are fed separately by

conveyers onto the mill’s main solid fuel conveyer which

transports the bark/sludge mixture to a surge bin. The fuel is

passed through a “waste heat dryer,” where it is briefly exposed

to boiler flue gas before being fed into the combination boiler.

The process at all four mills is continuous. Operators monitor

and manage the sludge on a 24 hour basis. Sludge drying takes

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place entirely within buildings where the tanks, pipes, mixers,

pumps, polymer feed systems, conveyers, presses, diversion gates

and valves, monitoring devices and other equipment necessary to

produce suitable sludge are housed.

Sludge burned in the boilers is transported to the boilers

on feed systems designed to ensure sludge, biomass and other

solid fuels are homogeneous, thoroughly mixed and not exposed to

the elements while being conveyed to the boilers. After its

removal from wastewater treatment, no sludge touches the ground

until it is burned, beneficially used (e.g., recycled feedstock

to make newsprint) or landfilled.

The commenters indicate that the moisture content of

biomass is highly variable. Operators control fuel use based on

the mill’s need for steam and electricity, fuel costs, fuel

quality and fuel availability. All factors can change at a

moment’s notice since the production process is constantly

changing. Pulp and paper production swings or curtailments are

common. Energy demand, fuel cost or fuel quality may make it

necessary or desirable to reduce biomass and sludge combustion,

even to switch entirely to fossil fuels. Environmental emissions

occasionally can be a factor in fuel use, particularly during

boiler startup or shutdown, or when the mill is experiencing

rapid fluctuations in steam demand.

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Response: Based on the information submitted, and as

discussed further in our responses below, the EPA is listing as

a categorical non-waste fuel under section 241.4 dewatered pulp

and paper sludges that are not discarded and are generated and

burned on-site by pulp and paper mills that burn a significant

portion of such materials where such dewatered residuals are

managed in a manner that preserves the meaningful heating value

of the materials.

This determination for pulp and paper sludge as a

categorical non-waste fuel represents the agency’s finding,

after balancing the legitimacy criteria with other relevant

factors, that those mills that burn a significant portion of

these pulp and paper sludges are burning them as a commodity

fuel for energy recovery and not discard. The discussion above

indicates that these mills have been designed to utilize pulp

and paper sludges and use of that material as a fuel is an

integral part of facility operations. Decisions regarding use

and the right mix of fuel in any given day are based on the

boiler conditions, fuel availability, energy needs, air quality

requirements and cost.

Comment: The EPA requested information on the amount of

pulp and paper sludge burned as fuel.

In 2010, members of AF&PA burned 772,034 dry tons of pulp

and paper sludge, which represents approximately 25 percent of

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the pulp and paper sludge generated by members of AFPA during

the year.94 However, approximately 90 percent of the AF&PA member

facilities that responded to their survey (42 out of 47) that

use dewatered pulp and paper sludge as fuels do so at a

significant rate (between 70-100 percent of these materials that

are generated are burned). In fact, one third of the AF&PA

facilities that responded to their survey (16) that burn pulp

and paper sludges, burn 100 percent of the materials generated.95

Response: As the commenter indicates, while 25 percent of

pulp and paper sludges that are generated are used as fuels on

an industry-wide basis, the vast majority of facilities that

responded to the survey that use dewatered pulp and paper

sludges as fuels do so at a significant rate. In light of the

information on use of pulp and paper sludges, the agency finds

that for those pulp and paper mills that burn a significant

portion, that their use as a legitimate fuel is integral to the

operation of the pulp and paper mill. The fact that these

sludges meet the contaminant legitimacy criterion also, in the

EPA’s view, shows that these sludges when burned on-site are not

being discarded.

94 Docket EPA-HQ-OAR-2003-0119-2619. 95 See April 4, 2012, letter from Timothy G. Hunt to James Berlow. A copy of this letter has been placed in the docket for today’s rulemaking.

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As discussed above, while the agency is not defining a

specific percentage of dewatered pulp and paper sludges that

would need to be burned to qualify for the categorical listing

in section 241.4, the agency would consider the 42 mills that

responded to the AF&PA survey as meeting the listing

description. Where a facility has burned or burns in the future

a significant portion of the dewatered pulp and paper sludges

that are generated, the facility is clearly dependent upon the

use of these materials as fuels in much the same way that wood

manufacturing facilities are dependent upon the stream of

resinated wood residuals to meet their energy demands.

Specifically, we note that the percentage of overall use of pulp

and paper sludges as a fuel at facilities burning a significant

portion of the material (70 percent in the AF&PA comment above)

is similar to the use of resinated wood within the wood products

industry -- approximately 73 percent of resinated wood generated

is either used as a fuel or is recycled back into the wood

manufacturing process.96 As noted above, mills that burn a

significant portion of their dewatered pulp and paper sludges

on-site as fuel in the future would also qualify for the listing

description.97

96 See Materials Characterization Paper In Support of the Final Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste – Resinated Wood Products. Docket EPA-HQ-RCRA-2008-0329-1820. 97 While the Agency is not including a specific requirement for pulp and paper mills to document the amount of dewatered wastewater treatment residuals they

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On the other hand, when a pulp and paper mill burns a

relatively small percentage of their dewatered pulp and paper

sludges on-site as a fuel (e.g., the five mills that responded

to the AF&PA survey that burn less than 20 percent), the agency

has determined that such sludges are not viewed the same by the

mill operator in that they do not rely on the sludges for their

energy value. As noted by one commenter, some mills may not

produce pulp and paper sludge with sufficient fiber, such that

the sludge is a viable fuel. Therefore, the agency finds that

such pulp and paper sludge should not be included in the

categorical listing in section 241.4.98 Those companies would

need to make case-by-case determinations regarding legitimacy to

support use as a fuel.

Comment: The EPA requested more data on contaminant levels

– particularly chlorine and metals.

The NCASI undertook a thorough evaluation of data related

to contaminant levels in pulp and paper sludge.99 NCASI looked at

the most robust information about pulp and paper sludge which is

burn on-site as a fuel, we would recommend that such pulp and paper mills include such documentation in case there are any questions as to whether the pulp and paper mills’ dewatered wastewater treatment residuals qualifies for the categorical listing in 241.4. 98 The Agency acknowledges that some portion of these pulp and paper sludges are land applied. While the Agency considers such uses as beneficial, such recycling is not integral to pulp and paper operations, and therefore, the Agency would not consider this form of recycling in determining whether a facility is recycling a significant portion of their pulp and paper sludges. 99 Docket EPA-HQ-OAR-2003-0119-2619.

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found in the EPA’s Boiler MACT database. That database has pulp

and paper sludge data comprised of nearly 5,280 records of

individual data points corresponding to 46 AF&PA member pulp

mills.

Table 8 of this preamble includes data from the EPA

traditional fuels table as well as the EPA Boiler MACT database

for pulp and paper sludge.

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Table 8. Comparison of Traditional Fuel Contaminant Concentrations With Pulp Mill Sludge Data From the EPA’s Boiler MACT Database

Data from EPA OAQPS Databases

Coal Biomass Fuel Oils

Data from Boiler MACT Database, v. 72

Industrial Sludge NAICS 322

Lit. Source

Range1

Compound

Units

Min

Max

Avg.

Min

Max

Avg.

Min

Max

Avg.

No.

NDs

Min

Max

90% UPL3

K-M4 Mean

ND - 26

Antimony (Sb)

ppm

ND 6.9

1.7

ND 6 0.9

ND 3.8

3.5

116

37

ND 3.14

2.0

0.45

ND - 80

Arsenic (As)

ppm

ND 174

8.2

ND 2986.3

ND 131.3

376

94

ND 105.0

70.6

7.94

0.1 - 15

Beryllium (Be)

ppm

ND 206

1.9

ND 10 0.3

ND 192.3

358

102

ND 2.6

1.97

0.35

ND - 3

Cadmium (Cd)

ppm

ND 19 0.6

ND 17 0.6

ND 1.4

0.4

385

53

ND 19.0

8.2

1.55

ND - 130

Chromium (Cr)

ppm

ND 168

13.4

ND 3405.9

ND 373.7

388

5 ND 170.0

77.3

17.14

ND - 30

Cobalt (Co)

ppm

ND 25.2

6.9

ND 2136.5

ND 8.5

1.1

127

22

ND 14.4

16.7

3.78

ND - 340

Lead (Pb)

ppm

ND 148

8.7

ND 2294.5

ND 524.3

347

19

ND 201.0

64.2

11.53

5 - 840

Manganese (Mn)

ppm

ND 512

26.2

ND15,800

302

ND 3200

118

369

3 ND 3,310

2,650

559.8

ND - 1

Mercury (Hg)

ppm

ND 3.1

0.09

ND 1.1

0.03

ND 0.2

0.02

397

40

ND 1.40

0.72

0.114

ND - 540

Nickel (Ni)

ppm

ND 730

21.5

ND 1752.8

ND 270

24.1

381

9 ND 180.0

67.7

14.990

ND - Seleni pp ND 74 3. ND 9 1 ND 4 0. 3 1 ND 6. 4. 0.9

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10 um

(Se) m .3 4 .

1 8 1

6 97

0 5 0

TSM 2,067

92.6

17,098

330.9

3,609

159.5

2,964

618.5

TSM

w/o Mn

1,555

66.4

1,298

28.9

409

41.5

314

58.7

Chlorine (Cl)

ppm

ND 9,080

992

ND5,400

259

ND1,260

133

374

11 ND4800

2,064

378

Total Halogen

s

ppm

9,258

1,056

5,528

291

1,274

142

2,394

445

1 Nitrogen (N)

g/kg

13.6

54.0

15.1

2.2

4.63.46

2.0

3.0

2.25

26

0 0.8

17.7

26.4

7.7

2 Sulfur (S)

g/kg

0.74

61.3

13.6

ND 6.10.70

ND57.0

8.28

118

0 ND6.3

8.8

3.0

The grey shaded cells indicate an outlier test was performed and the outlier(s) identified was confirmed based on further graphical observation (see further explanation below). 1Total range determined from literature sources - coal - Clarke and Sloss (1992); biomass - Energy Research Centre for the Netherlands, Phyllis Biomass database. http://www.ecn.nl/phyllis; oil - U.S. EPA (1999), Appendix B; 2Boiler MACT Database sludge analysis data; 3Chebyshev UPL for non-normal data sets; 4 Kaplan-Meier; Selenium (Se) - with the Rosner's test (n > 25), for 1% significance level, one potential outlier was 560 ppm, which was rejected after graphical observation of the data. The next highest detect was 6 ppm. Footnotes on Other Literature Data 1 Literature contains a value of 39.5 g/kg for nitrogen in biomass and 8.95 g/kg for nitrogen in fuel oils; 2 Literature contains a value of 8.7 g/kg for sulfur in biomass.

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The commenter indicates, as shown in the table, that

contaminant levels in pulp and paper sludge are well within the

ranges of metals found in traditional fuels. For all 11 HAP

metals, except Mn, the 90 percent UPL value for sludges is less

than the corresponding maximum for coal. For Mn, which is

principally derived from biomass, the 90 percent UPL value for

sludges is well below the maximum for biomass. This is also

reflected in the TSM comparisons with and without Mn between

coal, biomass and pulp and paper mill sludges. Chlorine and

total halogens (Cl + Fl) in sludge compare favorably with both

biomass and coal. Nitrogen and sulfur in sludge also compare

favorably with coal, although the commenter also points out that

the nitrogen and sulfur contents are generally not indicative of

HAP formation potential for any fuel, and in the case of pulp

and paper mill sludges in particular, the sulfur content of

these sludges is typically in the inorganic sulfate form that

predominantly ends up in the combustion ashes.

NCASI found a paucity of data on organics in pulp and paper

sludge. Except for Ds/Fs, which had been evaluated extensively

in the 1990s, organics are not expected to be found in pulp and

paper sludges. Due to the changes in bleaching techniques which

demonstrated significant reductions in the existence of Ds/Fs in

sludge, testing for even dioxins has not been undertaken

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recently. NCASI notes that of the data that do exist, organics

are rarely found and those that are identified are frequently

below the detection limit.

Overall, the commenter states that contaminant levels in

pulp and paper wastewater treatment residuals compare well to

those found in traditional fuels.

Response: Based on the information provided, the agency

finds that pulp and paper sludges, meet the comparable

contaminant criterion (241.3(d)(1)(iii)). The data confirms the

conclusions in the NHSM final rule regarding chlorine and metals

are comparable to the levels found in coal, which is a

traditional fuel that may be burned in these facilities.

Comment: The EPA requested information on what steps the

industry has taken to ensure the quality of pulp and paper mill

sludge when used as a fuel at pulp and paper mills is consistent

with that of a fuel product.

Commenters state that pulp and paper mills that generate

pulp and paper sludge do so as part of their compliance with the

CWA requirements, as well as part of an effort to return as much

wood fiber to use as possible, either as an input to the

manufacturing process or as a fuel. The strategies that each

mill uses to meet those requirements differ depending upon the

type of product, the location of the mill and the specific

standards established by the EPA and the respective states.

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However, mills clean wastewaters prior to discharge, thus

creating primary and a variety of secondary pulp and paper

sludges, all of which capture wood fibers. Furthermore, the

question of whether the quality of the pulp and paper sludge is

appropriate for a particular mill is based on the boiler design.

As such, there are some boilers well suited to burn it; others

cannot burn the material.

At one commenter’s mill, for example, the company has

invested over $7 million upgrading sludge drying and management

equipment. The object of these large investments was not to

remove all of the moisture in the sludge. Rather, it was to make

sludge quality consistent with that of the wet biomass burned in

its combination boilers. Either too much or too little moisture

can have a deleterious effect on the boilers’ combustion. One

mill recently installed a belt press to improve the reliability

of its sludge management system and increase the average solids

content of its sludge. Since then, the sludge has occasionally

caused combustion problems in the boiler because it was too dry,

necessitating additional quality control to optimize the

sludge’s moisture content.

Another commenter stated they invested over $3 million to

prevent unwanted materials from reaching the treatment process

and being discharged in mill effluent or being incorporated into

the pulp and paper sludge. Their mills make coated paper

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products, the coatings consisting largely of clay and other

minerals. Improved equipment and operating procedures have

significantly lowered sewer losses of these materials, improving

the quality of wastewater and reducing the ash content of these

pulp and paper sludges. To further pollution prevention, their

mills set stringent specifications for raw materials, such as

sulfuric acid and caustic soda, which minimizes the introduction

of trace amounts of heavy metals into the process.

From the standpoint of process control, the commenter

stated that sludge management processes are continuous, enclosed

and carefully controlled. In contrast, bark and wood chips may

be exposed to the elements for extended periods before being

burned. Depending on the season, hardwood bark can get “stringy”

and become very difficult to process as fuel. Frozen bark or

chips can jam or disable equipment. Purchased fuel can have

excessive rocks or grit. It is difficult to control the quality

of biomass burned in the commenter’s boilers. Sludge frequently

exhibits less variability in quality than other types of

biomass.

Response: Based on the information provided, the agency

finds that, for facilities burning a significant portion of the

dewatered sludge, use of the material is integral to the

facility’s operations, particularly in the value these materials

provide as a critical source of energy. At such facilities,

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sludge management processes are carefully controlled and the

industry has taken the necessary steps to ensure the quality of

pulp and paper mill sludge when used as a fuel at pulp and paper

mills. On the other hand, for those pulp and paper mills that do

not burn a significant portion of their dewatered wastewater

treatment sludges, the agency does not believe that the same

steps have been taken to ensure the quality of the pulp and

paper mill sludge that is used as a fuel and thus, is not an

integral part of the pulp and paper mill operations.

Comment: The EPA requested information on what are the

standard practices used to ensure pulp and paper sludge has

meaningful heating value.

As noted in the October 2011 pulp and paper sludge paper

the AF&PA submitted prior to the December 2011 proposal, the

overwhelming majority of pulp and paper mills remove water from

pulp and paper sludge prior to managing it in any way. Belt and

screw presses are most commonly used in the industry. Some mills

use steam heated filter presses. Some pulp and paper sludge is

also further dried in steam heated rotary driers. As indicated

previously, sludge drying takes place entirely within buildings

where equipment necessary to produce suitable sludge is housed.

Sludge burned in the boilers is transported to the boilers on

feed systems designed to ensure sludge, biomass and other solid

fuels are homogeneous, thoroughly mixed and not exposed to the

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elements while being conveyed to the boilers. In all instances,

the goal is to raise the solids content – and thus, Btu value.

Response: Based on these comments and other information in

the record, the agency finds that facilities that burn a

significant portion of these materials take the steps necessary

to dewater the pulp and paper sludge and to manage such

dewatered sludge to maintain its meaningful heating value and

burn the sludge for energy recovery.

Comment: The EPA requested information on how pulp and

paper mill sludge is managed when shipped offsite.

There are several mills within the industry that have

agreements with other facilities, primarily electric utilities

that purchase pulp and paper sludges for use as biomass-based

fuel. For the most part, these arrangements occur when there is

a utility close to the pulp and paper mill because the cost of

shipping such sludges long distances may be prohibitive. Pulp

and paper sludges may be sent offsite when it is being used by

other entities to produce another product, (including fuel

pellets100), used for other purposes (land application, use as

landfill cover), or for final disposal. Pulp and paper sludges

are shipped by containers, truck or rail.

100 When pulp and paper sludges are sufficiently processed, and such processed material meets the legitimacy criteria, the processed materials are non-waste fuels whether burned within or outside the control of the generator.

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Response: The agency recognizes that, as described above,

some pulp and paper sludges are sent offsite for use as a fuel.

However, the agency has restricted the categorical listing to

those pulp and paper sludges that are burned on-site because the

agency has minimal information on offsite use of these

materials. In fact, the pulp and paper industry indicates that

the great majority of these sludges, when burned as a fuel, are

burned on-site. Also, in the few instances that the pulp and

paper industry discussed in their comments that these materials

were shipped offsite, they seem to be sent to other industries.

The fact that these sludges are sent to other industries would

not necessarily disqualify those dewatered pulp and paper

sludges from being considered for listing categorically.

However, the agency does not have sufficient information to make

any determination.101

Comment: For reasons stated previously in comments on the

June 2010 proposed rule, one commenter argues that pulp and

paper sludges are waste when burned regardless of whether it is

burned by the company that generated it and regardless of

whether it meets the EPA’s legitimacy criteria. Paper mill

sludge is a waste because it is discarded within the meaning of

RCRA.

101 We note that in the situation where pulp and paper sludges are transferred beyond the control of the generator, a facility may also petition the Agency to receive a non-waste determination, as appropriate.

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The EPA’s description of pulp and paper sludge shows that

it remains a waste even under the agency’s own definition of

discard. First, the EPA acknowledges that pulp and paper mills

have no use for pulp and paper sludge; the fibers it contains

are “too short to be suitable for papermaking and it contains

microorganisms that feed on organic material in the wastewater

stream.” 102 Second, the fact that paper mill sludge comes from

“the wastewater stream,”103 in itself confirms that it is a

waste.

Third, the EPA’s discussion of the contaminant levels in

paper mill sludge shows substantial variation in chlorine

levels. Where the EPA encounters such variability in the course

of setting floors for CISWI units in the very same Federal

Register notice, the agency uses a 99th percent UPL to assure

that the level it chooses will not be exceeded. Yet, where the

EPA encounters variability in the chlorine levels in pulp and

paper sludge – variability that could lead to significantly

higher emissions of chlorinated pollutants, such as HCl and

dioxins – the agency simply dismisses it without further ado.

The EPA’s disparate treatment of the variability of emissions

for floor setting and of the chlorine levels in pulp and paper

102 See 76 FR 80485. 103 Id.

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sludge for the purposes of considering a categorical declaration

that such sludge is not a waste is unexplained and arbitrary.

If the agency believes that such variability exists, it

should be concerned about the possibility that some sludges may

have far higher chlorine levels than it assumes – as, indeed,

the record shows some sludge does – and should take steps to

ensure that this is not the case before it even considers an

exemption. Indeed, the agency’s failure to examine this

possibility renders the existing rule, which allows generators

to burn their own sludge, arbitrary and capricious.

Fourth, the EPA admits that sludge contains extremely low

heating values, so low in some instances as to flunk the

agency’s legitimacy criteria. That sources typically dewater

their sludges does not make these sludges any less a waste, even

under the agency’s own definition of discard. The EPA does not

say what the heating value of the sludges is after dewatering,

nor does it make any difference what the “dry weight” heating

value of sludges might be, as they are not at “dry weight” when

burned. The reality is that paper mills find it cheaper to burn

their sludges than to dispose of them safely and that because

these sludges are largely “wastewater” and contain high levels

of chlorine and other contaminants, burning them requires large

quantities of other fuel and generates high levels of pollution.

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Response: The agency disagrees with the commenter that all

pulp and paper sludges are waste fuels when combusted. To the

extent comments were submitted in response to the March 2011

final rule, the agency need not respond. Below, the EPA responds

to the new points raised in the comments.

With respect to the particular arguments on the categorical

listing, the agency disagrees that the sludge remains a waste

even under the agency’s own definition of discard. The comment

is incorrect when it states that the EPA has acknowledged pulp

and paper mills have no use for pulp and paper sludge because

the fibers it contains are “too short to be suitable for

papermaking and it contains microorganisms that feed on organic

material in the wastewater stream.”104 In the proposed rule, we

stated that fibers that end up being too short can be

detrimental to paper quality. Although this would not be

suitable for papermaking, these sludges are a valuable resource

as energy-containing secondary materials as discussed in detail

in the comments above. As much as 50 percent of the sludge is

composed of wood fibers which are similar in content to other

types of biomass fuel combusted.

Further, the agency disagrees that pulp and paper mill

sludges are wastes because they are contained in a “wastewater”

stream. The D.C. Circuit in, API v. EPA, 216 F.3d at 58,

104 See 76 FR 80485.

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rejected the proposition that the mere presence in a wastewater

stream makes a material a waste. In API, the D.C. Circuit

criticized the EPA for not saying why it concluded that the

disposal motivation, compliance with water quality standards,

predominated over the recycling motivation, recovery of oil from

primary wastewater treatment. Plainly, the mere presence of oily

material in wastewater did not make the oil a waste. In this

case, the EPA has found in its categorical listing that the

motivation for burning the pulp and paper sludge is to use its

inherent value as a fuel and not for disposal. Comments have

provided the agency with information that facilities that burn a

significant portion of these sludges consider them to be an

integral part of their production process, particularly in the

value these materials provide as a critical source of energy. We

disagree that the disposal motivation predominates over the true

value of these sludges as an important fuel, integral to the

production processes.

The EPA also disagrees that the treatment of the

variability of emissions for floor setting and of the chlorine

levels in pulp and paper sludge for the purposes of considering

a categorical declaration that such sludge is not a waste, is

unexplained and arbitrary. The agency notes that, rather than

dismissing the variability of chlorine levels in pulp and paper

sludges, it has considered all available data—including data on

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variability—and reached the conclusion that contaminant levels

in pulp and paper sludges are comparable to or lower than those

in the appropriate traditional fuel(s). The EPA acknowledges

that, based on data submitted to the agency since promulgation

of the March 2011 final rule and presented in the December 2011

proposed rule, chlorine levels in paper mill sludge show

substantial variation. This is an important factor to consider

when making a categorical non-waste determination and the agency

has considered mean concentrations, the range of concentrations,

and variability when analyzing pulp and paper sludges.

As stated in the proposed rule and information in the

rulemaking record, data for pulp and paper sludges show mean

chlorine concentrations of 361 ppm, well below the mean of 992

ppm observed in coal. Data for pulp and paper sludges also show

maximum chlorine concentrations of 4,800 ppm, well below the

maximum of 9,080 ppm observed in coal and below the maximum of

5,400 ppm observed in untreated wood and biomass materials. The

variability of chlorine levels in pulp and paper sludge is

demonstrated by a standard deviation of the mean of 661 ppm.105

106 This variation in chlorine levels, although high, does not

discount the fact that both average and maximum chlorine

105 See 76 FR 80485. 106 Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, can be found at http://www.epa.gov/epawaste/nonhaz/define/index.

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concentrations in pulp and paper sludge are lower than those in

coal which is defined as a traditional fuel.

The comment also implied that the EPA should use the 99

percent UPL, as is used to set the CISWI floors, to ensure that

these pulp and paper sludges do not contain excessive

contaminant levels. The agency disagrees that any one

statistical tool or comparison methodology will fit every

situation given the variety of NHSMs, traditional fuels,

contaminants and combustion units that exist. Nevertheless, the

agency has calculated the 99 percent UPL for chlorine levels in

pulp and paper sludge in response to the comment and come to the

same conclusion. The 99 percent UPL for the same dataset of 93

samples analyzed in the proposed rule would be 6,970 ppm, a

value below chlorine concentrations observed in coal.107

Finally, we disagree that pulp and paper sludge contains

extremely low heating values that would fail the agency’s

legitimacy criteria. In terms of meeting the legitimacy criteria

for a meaningful heating value, the agency indicated in the NHSM

final rule that pulp and paper sludges have a heating value of

between 3,300–9,500 Btu/lb, on a dry basis -- no specific

information having been submitted on the ‘‘as fired’’ heating

value of these materials. The final rule concluded that pulp and

107 The 99 percent Chebyshev UPL for non-normal datasets was calculated using EPA’s ProUCL 4.0 Software available at http://www.epa.gov/nerlesd1/tsc/software.htm.

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paper sludges meet the legitimacy criterion for being managed as

a valuable commodity as they are dewatered to increase their

energy value, collected on a continual or frequent basis (as

produced), and further processed and consolidated, including the

removal of biosolids. Further, as discussed in detail above,

where a facility is burning a significant portion of the

dewatered pulp and paper sludges that are generated as fuel

rather than other purchased biomass or fossil fuels, pulp and

paper sludges are integral to the facility’s operations and the

facility is clearly dependent upon the heating value of these

materials.108 Thus, we find, as discussed in the final rule, that

pulp and paper sludges are not discarded and generally meet the

meaningful heating value legitimacy criterion (46 FR 15488).

b. Coal Refuse109

In the 2011 NHSM final rule, the EPA included currently

generated coal refuse within the definition of traditional fuel

codified in 40 CFR 241.2. In discussing its determination that

currently generated coal refuse is a traditional fuel, the

agency said, “the fact that coal refuse has been used and

108 The final rule notes that meaningful heating value is derived from an NHSM with energy content lower than 5000Btu/lb if the ERU can cost-effectively recover meaningful energy from the NHSM used as fuel (76 FR 15541). 109 Coal refuse refers to any by-product of coal mining or coal cleaning operations, consisting primarily of non-combustible rock with attached coal. Due to advances in technology over the past century, the processing of coal has evolved, such that materials that are now generated in the coal mining process, which would have been considered coal mining rejects in the past and discarded in waste piles, are now handled and processed as coal.

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managed as a fuel for thirty years when coupled with the fact

that coal refuse is unique from other non-hazardous secondary

materials in that it is a byproduct of fuel production processes

and is itself a raw material that can be used as a fuel leads us

to determine that coal refuse that is currently generated and

used as a fuel should be considered a traditional ‘alternative

fuel.’”110

The 2011 NHSM final rule also determined that coal refuse

that has been placed in legacy piles would not meet the

definition of traditional fuels, as they clearly have been

discarded in the first instance.111 Since coal refuse recovered

from legacy piles is subjected to the same operations that are

used to process virgin coal, which serve to both increase energy

values, as well as reduce contaminants, the EPA determined that

such processes were sufficient to meet the definition of

“processing,” as codified in 40 CFR 241.2, and such recovered

coal refuse would not be considered a solid waste when used as a

fuel in a combustion unit provided those materials satisfy the

legitimacy criteria.112

The 2011 NHSM final rule also stated our belief that coal

refuse recovered from legacy piles contains contaminants at

levels that are comparable to or lower than coal refuse that is

110 See 76 FR 15507. 111 Id. 112 See 76 FR 15509.

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currently generated, as the recovered coal refuse is subject to

the same processes as currently-generated coal refuse in order

to meet the same fuel specifications. Since promulgation of the

2011 NHSM final rule, the agency has further clarified that it

believes that coal refuse recovered from legacy piles that is

processed and managed in the same manner as currently generated

coal refuse satisfies the legitimacy criteria.113

Having determined that coal refuse recovered from legacy

piles that is processed and managed in the same manner as

currently generated coal refuse satisfies the legitimacy

criteria, the 2011 proposed rule solicited comment on whether to

categorically list post-processed coal refuse from legacy piles

as a non-waste fuel in 40 CFR 241.4(a). However, the EPA made it

clear that it was not reopening any other issues regarding coal

refuse. Other comments regarding coal refuse are responded to in

the record for the final rule. In this part of the preamble, we

are only responding to the issue of whether coal refuse

processed from legacy piles should be considered a non-waste

fuel on a categorical basis. Accordingly, the EPA is not

responding in this preamble or the Response to Comment document

on issues regarding whether coal in legacy piles are traditional

fuels.

113 See August 15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the proposed rule: 76 FR 80486).

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Comment: One commenter states that not every material that

is discarded is treated as solid waste under the rule. For

example, the EPA includes numerous materials within its

definition of “traditional fuels” and “clean cellulosic biomass”

that are commonly understood as used, discarded, and abandoned,

listing, for example, corn stover, peanut shells and certain

types of demolition materials. The commenter argues that each of

these materials is either discarded or has filled its original

purpose and may be collected by a different party for a

different purpose (i.e., use as a fuel).

The commenter continues that although the agency has ample

authority to exempt certain articles from classification as

solid wastes, it did not consistently apply the term “discarded”

in the context of legacy coal refuse. For example, the EPA

recognized that on-specification used oil and clean C&D

materials should be treated as traditional fuels when combusted

for energy generation. Thus, the commenter urges the agency to

revisit its application of the “discard” principle and treat all

coal refuse, regardless of when they were generated and

regardless of processing to be fuels and not wastes.

Response: The EPA disagrees with the comment, which seems

to misunderstand the purpose of this rulemaking action. If the

agency determines in this rulemaking that a material is a solid

waste when combusted, the unit combusting that material would be

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subject to emissions standards issued under CAA section 129 even

if burned as a fuel. A material is not discarded simply because

it is no longer used for its original purpose. It may be used as

a fuel product by another party, providing the conditions the

EPA has explained in the rule apply. In such a case, the reused

material is not a waste. Further, the agency is not exempting

any materials from the definition of solid waste. The EPA is

only describing the kinds of materials that are wastes when

burned in combustion units, even if they are burned for energy

recovery. The EPA consistently applies the concept of “discard.”

Materials listed as examples of clean cellulosic biomass

cited by the commenter have not been discarded in the first

instance, as is clearly the case for coal refuse abandoned in

legacy piles. While some materials have filled their original

purpose, that fact, in and of itself, does not equate to

discard. Clean cellulosic biomass is considered to be a type of

“alternative fuel” within the definition of “traditional fuel.”

Such alternative fuels are developed from virgin materials that

can now be used as fuel products.114 This applies to the examples

mentioned by the commenter, including corn stover, peanut shells

and clean construction and demolition wood. Further, coal refuse

mined today that would have previously been abandoned in piles

114 See definition of traditional fuels, as codified in 40 CFR 241.2. We note that the December 2011 proposal did not solicit comment on the definition of traditional fuels.

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are also alternative fuels that are now grouped in the

traditional fuel category because of new technology. This is

separate from coal in legacy piles that have been traditionally

wastes.

Further, there is a clear difference between the management

of the listed examples of clean cellulosic biomass and coal

refuse abandoned in legacy piles. For example, the commenter

characterizes corn stover as “typically left in the field to

decay” and thus discarded. The EPA assumes this statement is

based on the historic use of leaving corn stover in the field as

a cover to reduce erosion and for nutrient content.115 As noted

by the agency previously, over the course of this rulemaking, an

emerging market for corn stover and other primary and secondary

agricultural residues is for use as a heat and power source for

the production of corn and cellulosic ethanol.”116 When the

determination is made to use corn stover for its fuel value, the

materials are managed differently than merely “left in the field

to decay.” If there were legacy piles of such materials, they

too would have to be treated as wastes while in the legacy

piles. We would also note that it is not unreasonable to expect

115 See Petrolia, Dr. Daniel R., “Economics of Crop Residues: Corn Stover.” June 2009. A copy of this document has been placed in the docket to today’s rulemaking. 116 See Materials Characterization Paper in Support of the Final Rulemaking: Identification of Nonhazardous Secondary Materials That are Solid Waste, Biomass—Agricultural Residues and Food Scraps.” February 3, 2011. A copy of this document can be found in the docket for today’s rulemaking.

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that agricultural materials, such as corn stover, may be left on

the field until there are sufficient amounts of those materials

to be collected, baled and transported. This is clearly a

different scenario from coal refuse left in place in piles with

no purpose other than abandonment and clearly managed as a waste

for decades.

With respect to used oil, the agency has already explained

in the final March 2011 rule the difference between on-

specification and off-specification used oil as applied to the

definition of solid waste. The on-specification used oil is

considered an alternative fuel that has not been abandoned and,

by regulation, may be burned with no more restrictions than

refined product oil. Off-specification used oil is specifically

described in the EPA’s regulations as a material that may only

be burned in certain combustors because it exceeds contaminant

levels established under part 279, rendering it off-

specification and, accordingly, evaluated under part 241 to

determine its waste/non-waste status.117.

Comment: One commenter argues that off-specification tires

are analogous to legacy coal refuse to the extent they are set

aside and not used immediately by the factory. Since the agency

proposes to include off-specification tires within the

117 Note that Section III.D.2.c of today’s preamble discusses circumstances under which off-specification used oil may use coal data when making contaminant comparisons.

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definition of “established tire collection program” and not

consider these materials to be a solid waste when used a fuel,

the agency should treat legacy coal refuse similarly.

Response: We disagree with the commenter that coal refuse

abandoned in legacy piles is analogous to the handling and

management of off-specification used tires. Coal refuse that has

been placed in legacy piles decades ago has clearly been

abandoned, thrown away and thus, discarded and historically

managed as a waste. On the other hand, the agency has

information that tire manufacturers that have produced off-

specification tires (including factory scrap) have contractual

agreements in place to ensure these materials are collected,

managed and transported to the combustor. In fact, it is the

requirement that scrap tires (including off-specification tires)

be managed pursuant to established tire collection programs that

ensures these materials are managed as a valuable commodity in

order to meet the categorical non-waste determination codified

in 40 CFR part 241.4(a).

Further, as we have noted elsewhere in today’s preamble, to

the extent that these off-specification tires are discarded,

such as in tire piles, they would be considered solid waste in

that they have been discarded, and would not be included within

the categorical listing of “scrap tires that are not discarded

and are managed under the oversight of established tire

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collection programs, including tires removed from vehicles and

off-specification tires.”

Comment: One commenter states that the EPA, consistent with

the intent of RCRA, should be encouraging the use of legacy coal

refuse, not hampering them. The commenter argues that

characterizing coal refuse in legacy piles as a solid waste

could subject legacy coal refuse piles to additional federal and

state requirements and potentially result in the piles being

classified as open dumps or solid waste management units.

Further, combustors of legacy coal refuse and their suppliers

would also be more likely to be subject to citizen suits under

RCRA 40 CFR 7002. This commenter argues that the determination

that unprocessed legacy piles are different—and should be

regulated differently—than coal refuse generated from current

mining operations is illogical because the characteristics of

the materials are the same. Thus, although the EPA takes the

position that subjecting legacy coal to the types of operations

that are used to process virgin coal is sufficient to convert

the legacy coal refuse from solid waste into a non-waste fuel,

the initial designation as solid waste risks regulatory

confusion regarding the status of the numerous piles of legacy

coal refuse.

Response: This comment is clearly beyond the scope of this

rulemaking proceeding. In the first place, legacy coal piles

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are, indeed, wastes. How they may be treated when they are in

the piles is clearly beyond the scope of this rule. This rule

deals with how the legacy coal is to be treated when it is taken

from the piles and burned for fuel.

Comment: While supporting the concept of a categorical

listing for legacy coal refuse, a few commenters argued that the

agency should not require that legacy coal refuse be “processed”

in order to be considered a non-waste fuel. One commenter noted

that the EPA does not require traditional fuels or resinated

wood to undergo processing to be treated as a fuel, even though

many of those materials would be understood to be discarded.

Another commenter noted that the term “post-processing,”

which was used in the proposal as a shorthand description of

legacy coal refuse that has undergone processing, is too vague

and should be eliminated so the use of extracted coal refuse

undergoing further processing at the generating facility is not

discouraged. If applied too literally, the commenter continued,

any “post-processing” provision being imposed on treating legacy

coal piles as fuel would not benefit the CFB community and could

hinder the usage of these piles as fuels. The commenter argues

that the term “post-processing” could be interpreted as

requiring processing at the coal refuse excavation site which

would not be determinative of any relevant characterization of

the coal refuse or its intended use as fuel.

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Response: In the 2011 NHSM final rule, the EPA discussed

how a NHSM, once discarded, can be processed into a non-waste

fuel.118 The proposed rule did not solicit comment on either the

concept of processing a discarded NHSM into a non-waste fuel or

the definition of “processing” itself, as codified in section

241.2. Therefore, the agency does not address the concept or

definition of processing in this final rulemaking.

Again, however, the comment suggests a need to clarify the nature of the rulemaking

exercise that the EPA is currently engaged in. First, we disagree with the commenter’s

characterization that many of the traditional fuels and resinated wood should be understood to be

discarded. Traditional fuels, by definition, are not discarded.119 If clearly discarded (e.g., a barrel

of fuel oil dumped), even a traditional fuel would have to be processed per the part 241

regulations in order to be a non-waste fuel. However, it is precisely because of their fuel value

that makes it unlikely that traditional fuels will be discarded. We also disagree that resinated

wood is discarded prior to being or when used as a fuel in a combustion unit. For a discussion of

why we believe resinated wood is a non-waste fuel, please see section III.E.3.b of this

preamble.120

As noted above, coal refuse abandoned in legacy piles has clearly been discarded in the

first instance because the coal preparation technology did not yet exist that could utilize these

materials for their fuel value. Thus, legacy coal refuse would have to be processed into a non-

118 See 76 FR 15474-15477. 119 See last sentence of “traditional fuels” definition, as codified in 241.2: “[Traditional] fuels are not secondary materials or solid wastes unless discarded” (emphasis added). 120 See also discussion included in the 2011 NHSM final rule (76 FR 15499-15502).

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waste fuel. However, the agency has previously recognized the uniqueness of coal refuse in that

it is a byproduct of fuel production processes and is itself a raw material that can be used as a

fuel.121 In the 2011 NHSM final rule, the agency determined that coal refuse that is recovered

from legacy piles and used as fuel that is subjected to the types of operations that are used to

process virgin coal or currently generated coal refuse would meet our definition of processing as

codified in 40 CFR part 241.2.122

As the processing that is required is no different than

what currently-generated coal refuse is subject to, we do not

believe the processing requirement would hinder the usage of

coal refuse piles. The agency believes the only additional

“processing” step is the actual extraction or recovery of the

coal refuse from the legacy piles. To the extent that the term

“post-processing” could be misconstrued as requiring an

additional processing step at the extraction site or otherwise

as compared to currently generated coal refuse, this was not the

agency’s intent. Rather, we have included the concept of

“processing” in the categorical non-waste determination for

legacy coal refuse, as legacy coal refuse was clearly discarded

and, prior to processing, is a solid waste. That said, we

121 See 76 FR 15507, which states, “Coal refuse is unique, however, from other non-hazardous secondary materials addressed in this rulemaking, as it is generated in the process of producing fuels (i.e., the mining of coal for use as fuel) and its subsequent use and value as a secondary material is also as a fuel. Since the primary product of a coal mining operation is itself a fuel, we consider coal refuse to be more akin to a raw material that is subsequently processed and utilized to produce a fuel. In other words, coal refuse is different from other non-hazardous secondary materials, such as used tires or resinated wood residuals, in that it is generated in the production of fuel and can be used itself as a fuel (and in fact has never been used for anything else).” 122 See 76 FR 15509. In addition, subsequent to the 2011 NHSM final rule, the EPA has reiterated this determination. See August 15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the proposed rule: 76 FR 80486).

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clarify again today that coal refuse recovered/removed from

legacy piles that is processed in the same manner as currently

generated coal refuse would meet the definition of processing as

codified in section 241.2. No additional processing is required

given the uniqueness of coal refuse. For commenters suggestions

regarding the explicit wording of the categorical listing for

legacy coal refuse, see additional response to comments below.

Comment: In support of the agency’s soliciting comment on

whether to add legacy coal refuse to the list of categorical

non-waste fuels proposed in 40 CFR part 241.4, one commenter

states that once removed from the physical mining location,

legacy coal refuse and currently-generated coal refuse are

indistinguishable. Thus, coal refuse from legacy piles will be

managed in the same manner as coal refuse, will have similar

heating value as coal refuse and be used as a fuel in a

combustion unit that recovers energy and can be expected to have

similar contaminant levels as coal refuse because it is

ostensibly the same material.

Response: We agree that coal refuse recovered/removed from

legacy piles and processed in the same manner as currently

generated coal refuse would meet both the definition of

processing and the legitimacy criteria. Thus, we have determined

to list “coal refuse that has been recovered from legacy piles

and processed in the same manner as currently-generated coal

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refuse” to the list of categorical non-waste fuels codified in

part 241.4(a) of today’s rulemaking. The rationale for adding

this NHSM to the list of non-waste fuels follows the reasoning

finalized in part 241.4(b) in today’s rulemaking. We agree with

the reasoning of the comment and have, in fact, arrived at the

very same reasoning in support of the categorical listing.

Comment: One commenter argued that the EPA should treat

legacy coal refuse as fuels, since they are chemically

identical, if not superior fuels, to currently generated coal

refuse that the agency considers to be a traditional fuel, per

the definition codified in 40 CFR 241.2.

Response: Again, the EPA must explain a misunderstanding

expressed by the commenter. The comment seems to consider that

material is either a “fuel” or a “waste” and misses the point

that the distinction in this rulemaking is between a “product”

and a “waste” fuel. Fuels may be wastes. The point is that the

coal that has been abandoned in piles is a waste. However, the

EPA has determined that once processed that coal is either

identical (or maybe even superior) to currently mined materials

that would have become refuse in the past.

The EPA agrees with, and has adopted, the same reasoning

expressed by the commenter that the processed material is a

product fuel. The disagreement between the EPA and the comment

is the status of the legacy piles and the nomenclature of the

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coal finally burned. The coal is a processed fuel product, not a

traditional fuel.

Comment: One commenter stated that there are “other

relevant factors” that the EPA should consider when determining

whether coal refuse from legacy piles should be categorically

listed as a non-waste fuel. Specifically, the commenter believes

that the EPA should consider the “overwhelming resultant

environmental improvements” associated with the cleanup of

abandoned coal refuse piles, including the reduction of fire

hazards and contaminant, siltation, and solids releases into the

environment, as an “other relevant factor” as it considers

listing legacy coal refuse as a non-waste fuel in part 241.4.

Response: The EPA’s decision to include processed legacy

coal refuse to the list of non-waste fuels in part 241.4(a) was

based on the fact that such materials meet the definition of

processing and the legitimacy criteria. We do not need to

balance “other relevant factors” in making this determination,

as would be appropriate under an analysis conducted under

section 241.4(b)(5)(ii).

Comment: The EPA received a few comments regarding the

specific wording of how coal refuse recovered from legacy piles

should be identified and described in part 241.4(a) should the

agency determine to categorically list this NHSM pursuant to

part 241.4(a). One commenter suggested inserting the following

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text as a subsection within part 241.4(a): “Coal refuse that

does not constitute currently-generated coal refuse, but that is

processed in the same manner as currently-generated coal

refuse.” As previously discussed, another commenter stated that

the term “post-processed” was vague and could be interpreted to

require additional processing that would hinder the usage of

legacy coal refuse piles. Still another commenter suggested

referencing the SMCRA in a categorical non-waste determination

for coal refuse, which would ensure that the coal refuse is a

fuel and minimize overlapping regulatory jurisdiction that could

evolve.

Response: As discussed above, we have determined to list

“coal refuse that has been recovered from legacy piles and

processed in the same manner as currently-generated coal refuse”

to the list of categorical non-waste fuels, as codified in part

241.4(a) of today’s rulemaking. We believe this language

accurately captures the scope of materials at issue and what

must occur for the material to be categorically characterized as

a non-waste fuel. That is, this categorical listing only applies

to coal refuse that has been discarded in the first instance in

legacy piles, subsequently recovered or removed from the discard

environment and subjected to the same processes and operations

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as currently generated coal refuse.123 Further, this language

should alleviate any concerns that the term “post-processed” is

vague since that term is not being used within this provision as

finalized today.

We do not agree with the comments that a categorical

listing for legacy refuse should specifically reference SMCRA.

As we noted in the preamble to the 2011 NHSM final rule, while

the EPA recognizes that SMCRA is concerned with the management

and removal of coal refuse piles at mining sites, SMCRA does not

address the issue of “discard,” which is critical to the

definition of solid waste under RCRA.124 Thus, a specific

reference to SMCRA would be inappropriate as well as confusing.

Further, we believe that a specific reference to SMCRA would be

in fact more burdensome than the language of the categorical

listing being codified today, which simply states that legacy

coal refuse must be processed in the same manner as currently-

generated coal refuse, regardless of whether such processing is

done pursuant to SMCRA.

c. Manure

In the 2011 NHSM final rule, the EPA stated that based on

the information provided, we could not make a blanket

123 We note that it would not be appropriate to include currently generated coal refuse within this categorical non-waste determination, as we have previously determined and continue to believe that currently generated coal refuse is a traditional fuel. 124 See 76 FR 15510.

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determination that all manure is a traditional fuel or that it

is a solid waste. However, upon reviewing the few comments and

data received, we concluded that animal manure that is used as a

fuel “as generated” does not satisfy the legitimacy criteria,

and thus, if combusted “as generated,” would be a solid waste.125

However, the agency also noted that there were circumstances

where manure would not be considered a solid waste when burned

as a fuel for energy recovery, specifically: (1) when the manure

remained within the control of the generator and met the

legitimacy criteria; (2) when the manure was sufficiently

processed (e.g., via anaerobic digestion or gasification

processes) and the resulting material met the legitimacy

criteria; and (3) when a facility received a determination from

the agency pursuant to 241.3(c) stating that its manure was a

non-waste when used as a fuel. For further discussion regarding

our characterization of manure, see the preamble to the 2011

NHSM final rule (76 FR 15479-15482).

In the December 2011 proposed rule, the agency noted that

some parties have identified the potential of manure to not be

considered a solid waste. We, therefore, invited parties to

present information, including data demonstrating that manure is

not discarded either through the existing non-waste petition

125 See 76 FR 15480.

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process or the proposed categorical determination process.126 The

agency received no information or data that would allow it to

consider proposing to list manure categorically as a non-waste

fuel.127 Therefore, we are not taking any action in the

rulemaking with respect to manure. However, the agency did

receive several comments from one commenter which we will

respond to below.

Comment: The commenter states that dried animal manure

should be included as a non-waste with the other fuels in 40 CFR

241.4(a). The commenter contends that there is no evidence that

any animal manure is discarded, let alone sent to landfills.

Manure is generally used as fertilizer on fields, although an

important secondary purpose is for energy recovery/generation.

In addition, the commenter states there are several known

instances of additional plans for animal manure energy projects

that are designed specifically to recover energy, including

government funded projects.

The commenter notes that after drying, animal manure has a

meaningful Btu value equal to or above that of other biomass

126 See 76 FR 80472. 127 In the preamble to the proposed rule, the agency indicated the type of information and data that should be submitted to categorically list manure as a non-waste fuel. Specifically: (1) the extent that use of the NHSM has been integrally tied to the industrial production process—information can include combustor design specifications, the extent that the use of the material is integrated across the industry and the extent that use of the NHSM is essential to the industrial process and/or (2) the extent that the NHSM is functionally the same as the comparable traditional fuel and (3) other relevant factors.

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that the EPA has determined to be a non-waste fuel (e.g.,

bagasse). The commenter also notes that there are contracts in

place for livestock and poultry producers to supply manure to

the combustor.

Regarding contaminants in manure, the commenter states that

the amount of contaminants is limited because the vast majority

of applicable contaminants are directly related to the

contaminants contained in the biomass consumed by the animals.

The EPA has not presented any evidence that facilities are

combusting manure in order to discard chlorine or nitrogen, the

two contaminants identified by the EPA. These concentrated

contaminants are no different than what occurs in the production

of “byproducts of ethanol natural fermentation processes,” which

the EPA is now proposing to include in the definition of “clean

cellulosic biomass.” Based on a “balancing of the legitimacy

criteria and other such relevant factors,” the EPA‘s new

standard, animal manure should be included in the 40 CFR

241.4(a) fuels list, along with resinated woods and scrap tires.

Response: We disagree with the commenter on several points

and do not believe that the case has been made to include animal

manure as a categorical non-waste fuel in 40 CFR 241.4(a).

First, in the 2011 NHSM final rule, we previously determined

that animal manure that is used as fuel, “as generated,” would

not satisfy the legitimacy criteria. This conclusion was based

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on the fact that such material likely would not satisfy the

meaningful heating value and contaminant legitimacy criterion.128

Thus, we believe that the burning of such materials (as

generated) would not be legitimate and would be seen as burning

for discard. Further, the agency has never stated that a NHSM,

including animal manure, has to be landfilled in order to be

discarded, as the commenter implies. Regarding the use of manure

as fertilizer, we have been clear that this rulemaking does not

address that secondary use. The 2011 NHSM final rule states, “We

recognize that manure may also be beneficially used in other end

uses, such as a fertilizer… EPA is not making any determination

whether non-hazardous secondary materials are or are not solid

wastes for other possible beneficial end uses. Such beneficial

use determinations are generally made by the states for these

other beneficial uses, and EPA will continue to look to the

states to make such determinations.”129

The commenter notes additional plans for animal manure

energy projects; however the fact that there are plans for

future projects does not support a categorical non-waste

determination today. As the EPA has acknowledged, facilities may

be able to demonstrate that they satisfy the legitimacy

criteria, either through a self-determination if the manure

128 See 76 FR 15480-15481. 129 76 FR 15482.

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remains within the control of the generator or through the part

241.3(c) non-waste determination petition process. Thus, any

future energy project using animal manure as fuel could utilize

either of these options for determining that the manure is a

non-waste fuel, as appropriate.

Regarding the commenter’s points related to meaningful

heating value of dried manure, the fact that dried manure may

have a greater Btu value than bagasse is not directly on point.

To demonstrate that a NHSM has meaningful heating value when

used as a fuel, a facility does not compare relative Btu/lb of

the NHSM against other traditional fuels, which themselves have

a wide range of heating values. Rather, consistent with other

EPA rulemakings, we have established 5,000 Btu/lb as a benchmark

for demonstrating that a NHSM has meaningful heating value.

Thus, to meet the meaningful heating value legitimacy criterion,

the material would need to meet an “as fired” heating value of

5,000 Btu/lb, or if lower than 5,000 Btu/lb, as fired, a person

would need to demonstrate that the ERU can cost-effectively

recover meaningful energy from the NHSM used as a fuel.130 We

also note that the EPA did not reopen the meaningful heating

value for fuels, as codified in 40 CFR part 241.3(d)(1)(ii), in

the December 23, 2011, proposed rule. Thus, in order to meet

this criterion, the dried manure would need to meet an “as

130 See 76 FR 15541.

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fired” heating value of 5,000 Btu/lb, or if lower than 5,000

Btu/lb, the facility would need to demonstrate that the ERU can

cost-effectively recover meaningful energy from use of manure as

a fuel.

Regarding the commenter’s statement regarding contracts

between livestock and poultry producers and combustors, first we

would note that no information has been provided to indicate who

has entered such contracts or how many such contracts there are

to consider this factor. However, as we have stated elsewhere in

this preamble, contractual arrangements can be used as evidence

that the material is managed as a valuable commodity and that

discard is not occurring when a material is transferred beyond

the control of the generator. However, the fact that there is a

contractual relationship by itself is not dispositive that a

material is not a waste, as there are contracts between parties

to remove and dispose of wastes.

We also believe that the commenter’s statements that the

concentrated levels of contaminants are no different than what

occurs in the production of “byproducts of ethanol natural

fermentation processes” is not supported by any information or

data. That is, other than the general statement, the commenter

has not provided contaminant data, for either animal manure or

byproducts of ethanol natural fermentation processes, for the

agency to analyze and compare.

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Thus, we have determined based on the lack of any

information or data that animal manure should not be listed as a

categorical non-waste fuel in part 241.4(a).

Comment: In the event that the agency does not list animal

manure as a categorical non-waste fuel, the EPA could

alternatively decide that processing of animal manure by drying,

constitutes “sufficient processing,” such that previously

discarded manure could be considered recovered for energy

recovery, just like scrap tires could be processed and burned as

a non-waste.

Response: In the December 23, 2011 proposal, the agency did

not solicit comment on the definition of “processing,” as

codified in 40 CFR part 241.2. Thus, this comment is beyond the

scope of the rulemaking and will not be addressed in today’s

final action.

d. Other Materials for Which Additional Information was Not

Requested

In the December 2011 proposal, the agency solicited comment

on a focused list of NHSMs and, in particular, whether these

NHSMs would be appropriately included in the categorical list of

non-waste fuels that the agency was proposing in 40 CFR

241.4(a). Specifically, the agency proposed and/or invited

comment and additional information regarding potential

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categorical non-waste determinations for resinated wood, scrap

tires managed pursuant to established tire collection programs,

pulp and paper sludges, and coal refuse recovered from legacy

piles.

Although comment was requested only for these specific

materials, the agency received comments that many other NHSMs be

listed as categorical non-wastes for which it did not request

additional information as a part of this rulemaking. As we have

discussed elsewhere in today’s preamble, we will not be

responding to such comments and issues that are beyond the scope

of today’s narrow rulemaking. We would also note that since the

agency did not specifically solicit comments on these additional

materials or propose that these NHSMs should be categorically

listed in 40 CFR 241.4(a), the Agency will be going through

notice and comment rulemaking before making a final decision.

However, we would like to note two additional NHSMs—paper

recycling residuals and construction and demolition wood

processed pursuant to best practices that, based on information

provided to the agency,131 we now believe are good candidates and

131 Comments on December 23, 2011 proposed rule supporting a categorical non-waste for paper recycling residuals: American Forest & Paper Association, et al. EPA-HQ-RCRA-2008-0329-1946-A1; Georgia-Pacific LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1; National Alliance of Forest Owners (NAFO) EPA-HQ-RCRA-2008-0329-1950-A2; Packaging Corporation of America (PCA) EPA-HQ-RCRA-2008-0329-1966-A1; and United Steelworkers (USW) EPA-HQ-RCRA-2008-0329-1910-A1. Comments supporting a categorical non-waste for paper recycling residuals and C&D wood: American Forest & Paper Association, et al. EPA-HQ-RCRA-2008-0329-1946-A1; Construction Materials Recycling Association (CMRA) EPA-HQ-RCRA-2008-0329-1928-A1; Covanta Energy Corporation (Covanta) EPA-HQ-RCRA-2008-0329-1893-A; Energy Recovery Council (ERC) EPA-HQ-RCRA-2008-0329-1927-A1; Georgia-Pacific

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expect to propose categorical listings in 40 CFR 241.4(a) in

the near future for these two materials. With respect to a third

NHSM—creosote-treated railroad ties, the Agency has recently

received a draft petition from The American Forest & Paper

Association and the American Wood Council seeking a categorical

listing for these materials. As noted below, the Agency has

requested additional information from the petitioners with

regard to their request. If the additional information supports

the representations made in the petitioners draft December 6,

2012 petition, the EPA expects to propose a categorical listing

for this material as well.132

Paper Recycling Residuals

The first of these is paper recycling residuals (including

old corrugated cardboard (OCC) rejects). In the 2011 NHSM

final rule, EPA determined that paper recycling residuals,

referred to as OCC rejects, are not discarded when used under

the control of the generator, such as at pulp and paper mills,

since these non-hazardous secondary materials are part of the

industrial process.133 Regarding the legitimacy criteria, the

Agency found that these materials meet the criteria with respect

LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1; Michigan Biomass EPA-HQ-RCRA-2008-0329-1905-A1; National Alliance of Forest Owners (NAFO) EPA-HQ-RCRA-2008-0329-1950-A2; United Steelworkers (USW) EPA-HQ-RCRA-2008-0329-1910-A1; Waste Management (WM) EPA-HQ-RCRA-2008-0329-1957-A2; and Weyerhaeuser EPA-HQ-RCRA-2008-0329-1930-A1. 132 See draft letter from Paul Noe to Adminstrator Lisa Jackson, December 6, 2012, (item to be placed in the docket for today’s rule). 133 [76 FR 15487]

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to management as a valuable commodity and used as a fuel when

burned on-site. In addition, the Agency found that the

contaminant levels in these materials are comparable to those in

traditional fuels. With respect to the meaningful heating value

criterion, the Agency determined that OCC rejects meet this

criterion if it can be demonstrated that the combustion unit can

cost-effectively recovery energy from these materials.134

Since publication of the March 2011 rule, the Agency has

received additional information regarding the cost effectiveness

of paper recycling residuals use as a fuel, including amounts of

paper recycling residuals replacing traditional fuels at paper

mills and percentages of residuals generated that are combusted

as fuel. In general, this information also indicates that this

material is primarily combusted as a fuel on-site or within the

control of the generator.135 We have asked the industry for

information to confirm this.

EPA believes the information received to date would tend to

support a categorical determination of these residuals as non-

waste fuels. For residuals that are transferred offsite, the

Agency would like additional information about residuals that

are also burned as a fuel at facilities that are not under the

control of the generator, including information as to how and

134 For a discussion of OCC rejects, see 76 FR 15486-7. 135 See "Generation, Management, and Processing of Paper Processing Residuals" (Industrial Economics, October 26, 2012) (these items will be placed in the docket.)

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where they are burned and whether they are managed as a valuable

commodity. If the Agency receives information confirming

treatment of these materials offsite, the Agency would expect to

include these residuals in a subsequent rulemaking.

Construction and Demolition Wood Processed Pursuant to Best

Practices

The second of these NHSMs is construction and demolition

(C&D) wood processed pursuant to best practices and produced and

managed under the oversight of a comprehensive collection system

or contractual arrangement. In the March 2011 final rule, we

determined that C&D wood that is sufficiently processed can be a

non-waste fuel.136 The Agency has received additional

information since the issuance of that rule on specific best

management practices used by suppliers/processors of C&D wood.

Such practices include processing to remove contaminants. EPA

believes the information received to date would tend to support

a listing of these materials as a categorical non-waste fuel and

expects to propose that listing in a subsequent rulemaking.

Other Materials Under Consideration

The American Forest &Paper Association and the American

Wood Council submitted a draft petition to EPA on December 6,

2012 seeking a categorical listing for creosote-treated railroad

136 See 76FR 15485

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ties.137 This draft petition lists their bases for the

determination, with supporting information.

The information included amounts of railroad ties combusted

each year and value of the ties as fuel. Overall, the

petitioners believe the information demonstrates that these

materials are non-waste fuels and would allow EPA to

categorically list this material, balancing the legitimacy

criteria with other relevant factors. The draft petition

provides information representing a determination that the

material has high Btu value, and that the material satisfies the

legitimacy criteria. The Agency is still in the process of

reviewing the petition. However, in order to inform the scope

of the non-waste category, we have also asked the petitioners

to provide additional information, including:

1. A list of industry sectors, in addition to forest

product mills, that burn railroad ties for energy

recovery

2. The types of boilers (e.g., kilns, stoker boilers,

circulating fluidized bed, etc.) that burn railroad ties

for energy recovery

3. The traditional fuels and relative amounts (e.g.,

startup, 30%, 100%) of these traditional fuels that

137 Letter from American Forest & Paper Association and American Wood Council to Lisa Jackson, dated December 6, 2012(a copy of this letter can be found in the docket for today’s rule)

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could otherwise generally be burned in these types of

boilers

4. The extent to which non-industrial boilers (e.g.,

commercial or residential boilers) burn railroad ties

for energy recovery

5. Laboratory analyses for contaminants known to be present

in creosote-treated railroad ties or known to be

significant components of creosote, specifically

polycyclic aromatic hydrocarbons (i.e., PAH-16),

dioxins, dibenzofurans, hexachlorobenzene, biphenyl,

quinoline, cresols, and 2,4-dinitrotoluene.

Assuming that the additional information supports and

supplements the representations made in the petitioner’s

December 6, 2012 draft petition, the EPA also expects to propose

a categorical listing for this material. To the extent that

petitioners would like to provide additional information, the

Agency will consider such information as well.

EPA has also received a related letter from the Treated

Wood Council asking that nonhazardous treated wood be determined

as a categorical non-waste, a broader category that would

include creosote-treated ties.138 EPA is in the process of

138 Letter from Jeffrey Miller, Treated Wood Council to Lisa Feldt, December 17, 2012. (a copy of this letter can be found in the docket to today’s rule) Additional supporting information is found in the Comments of Treated Wood Council, dated Feb. 20, 2012)( EPA-HQ-RCRA-2008-0329-1897.

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reviewing this letter, and may also propose a categorical

listing for this broader set of treated wood material. Finally,

we would note that if any person provides sufficient

information to EPA regarding any other NHSM, EPA would also

consider listing such material(s) categorically, pursuant to 40

CFR 241.4(b).

6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination

Petition Process

In the proposed rule, the EPA asked for comments on

streamlining or other improvements to the existing provision for

non-waste determinations codified at 40 CFR 241.3(c).

The agency requested comment on whether the EPA’s grant of

the petition should apply as of the date that the petition was

submitted to the agency.139 The agency also requested additional

comment on whether any other changes could be made to the non-

waste determination petition in order to streamline the process,

while at the same time provide the EPA with the opportunity to

ensure that such NHSMs are not being discarded. For example, the

139 See 76 FR 80473.

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EPA requested comment on whether public comment should be sought

on each individual petition.140

Comment: Concerning the request for comment regarding when

a petition determination would apply, the agency received

several comments. Specifically, the agency requested comment on

whether the EPA’s grant of the petition should apply as of the

date that the petition was submitted to the agency. Commenters

agreed that a non-waste determination under 40 CFR 241.3(c)

should be retroactively applied to the date the petition was

submitted.

Commenters were concerned about the timeliness of the EPA’s

decision on these determinations and on the uncertainty

surrounding the usage of the NHSMs while a non-waste

determination petition is pending. The commenters argue that if

a NHSM is determined to be non-waste, the combusted NHSM in

question was also non-waste prior to the determination.

Response: The agency understands the interests of

petitioners awaiting an agency decision on the status of

materials, while a 40 CFR 241.3(c) petition is being considered.

In order to lessen the uncertainty surrounding the regulatory

status of a particular material, the agency will utilize the

date the petition was submitted as the date that the combusted

140 See 76 FR 80474.

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materials will be considered a non-waste if the agency grants

the petition.

Comment: Many commenters indicated concern that the

petition process could take excessive time for the agency to

reach a decision. They requested self-imposed timeframes for the

EPA’s granting/denying requests and a shorter length of time for

the notices to be open for public comment (or omit it

altogether). The combustors stated they need quick decisions in

order to comply with the CAA regulations and to make efficient

business decisions.

Response: The agency considered the commenters suggestion, but

decided not to impose a deadline on its decision because there

are many factors beyond its control, including how long it takes

for the petitioner to submit a complete petition to EPA for

evaluation. We would note, however, that even though the NHSM

rule will become effective on April 8, 2013, for all practical

purposes, existing facilities that currently burn NHSMs from

off-site sources will have a substantial amount of time to

submit and have the EPA process a non-waste determination

petition before having to comply with the CAA emission

standards, as the compliance date for existing CISWI sources

subject to CAA 129 standards is 5 years after the date of

publication of the CISWI final rule or 3 years after the state

plan is approved, whichever happens earlier and February 7,

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2016, to comply with the Boiler MACT rule.141,142 Thus, we believe

that there will be more than adequate time for persons to

determine whether or not a NHSM sent to a combustion unit not

under the control of the generator has not been discarded and

meets the legitimacy criteria, prepare and submit a non-waste

determination petition to the EPA, have the EPA process the

petition, including soliciting comment on the EPA’s proposed

determination, and make a final decision.

In regard to the comment on reducing the time the petition

application is open for public comment, the agency decided that

the comment period shall remain at 30 days but the regulatory

text is changed from “at least 30 days" to “30 days” in order to

promote clarity, while affording an opportunity for public

comment.

Comment: One commenter strongly encouraged the agency to

develop and deploy an on-line form to identify materials for

non-waste determinations. Commenters also noted that the EPA

should provide more detailed information about how the

determinations are made (particularly for the comparable

contaminant determinations).

141 We recognize that new sources that are coming online that will have to comply with these rules much sooner than do existing sources. As such, the Agency will consider prioritizing the processing of non-waste petitions it has received from new sources as appropriate. 142 Note that the compliance date for the Area Source Boiler Rule is March 21, 2014.

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Response: The agency will consider the development of a

form to identify the specific information needed to determine

whether a NHSM meets the legitimacy criteria and other

provisions. If the agency develops such a form, it would be made

available on the NHSM website. Please note that traditional fuel

data (including tables for traditional contaminants) are

available to the public, which they may find useful in assessing

the contaminant legitimacy criteria. Refer to those tables in

“Contaminant Concentrations in Traditional Fuels: Tables for

Comparison” currently posted on the NHSM web site at

http://www.epa.gov/osw/nonhaz/define/index.htm. That document

will aid in comparing the concentration of contaminants in their

NHSMs to concentration of contaminants in traditional fuels. In

addition, rule clarification letters and petition findings are

also posted on the website when finalized.

Comment: A commenter suggested that the non-waste petition

process should allow for “balancing” of legitimacy criteria

similar to that included for categorical determinations in 40

CFR part 241.4.

Response: Under 40 CFR 241.4 of the proposed regulation,

the EPA can balance the legitimacy criteria with other relevant

factors in making categorical non-waste determinations. As the

commenter points out, we have not discussed the applicability

for similar balancing under 40 CFR 241.3 non-waste determination

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petitions. The EPA distinguished between 40 CFR 241.3 and 40 CFR

241.4 because in the latter, the EPA makes the determination

based on its review and analysis of industry-wide data and other

factors, as opposed to a specific site. However, the EPA

recognizes the points the commenter raises and will consider

whether such modifications may be appropriate.

Comment: Several commenters were interested in features

that streamline and add flexibility to the administrative

petition process, particularly in the situation where a petition

can apply to multiple combustors.

One commenter noted that any interested person – including

forest owners – should be able to initiate the petition process,

not just combustors. The petitions should be allowed for entire

classes of a NHSM rather than requiring a case-by-case analysis.

These clarifications will encourage all members in the biomass

supply chain to promote their products and co-products as clean,

renewable fuels and promote the development of new markets for

biomass materials. Other commenters also stressed the need for

the EPA to clarify that the petition can apply to more than one

combustor so that redundant petitions do not need to be filed in

every region.

A commenter also stated that the benefits from petitions

could be achieved more efficiently if the regulatory language

was changed to allow for nation-wide petitions under 40 CFR

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241.3(c) for classes of combustion units rather than requiring

separate petitions for each EPA region.

Response: The agency agrees with the commenters that the

process should accommodate for petition applications from third

party producers of a NHSM that can be used as a non-waste NHSM

fuel at many combustion units instead of just accepting

petitions from individual combustors or combustors within the

control of one EPA region. This can make for a more streamlined

and efficient process. Therefore, the regulatory provision at 40

CFR 241.3(c) has been modified to allow for the petition to be

sent to the Assistant Administrator for the OSWER instead of

each Regional Administrator if the petition covers more than one

EPA Region. This is at the option of the petitioner. The

Assistant Administrator for the OSWER would be responsible for

the EPA’s administrative process in order to finalize the

petition decision under 40 CFR 241.3(c) and the regulatory

language has been modified accordingly.

Finally, as noted in the 2011 NHSM final rulemaking,

states, or private entities, can submit non-waste determination

petitions to the EPA on behalf of petitioners. They can petition

for a single combustor or a class of combustors (e.g., a

specific usage of a non-hazardous secondary material in a

particular state). Therefore, in regard to the comment on

nationwide petitions for classes of combustion units, the

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petition process accommodates for these classes of combustion

units. This assumes that the petition identifies all of the

specific NHSMs that the classes of combustion units use as fuel

(that are applicable to a 40 CFR 241.3(c) petition) and gives

the information necessary to meet the legitimacy criteria and

other requirements.

Note that if a petition covers multiple facilities in a

single region, the petition should be sent to the Regional

Administrator for that Region, not to the Assistant

Administrator for the OSWER.

Comment: Several commenters argued that the 40 CFR 241.3(c)

petitions should not require public comment for each individual

petition.

One commenter stated that “the administrative petition

process could be further streamlined by not seeking public

comment on every individual petition. By filing an

administrative petition, a petitioner is not seeking to change

the EPA’s regulatory program or create new legal rights or

obligations. Instead, the administrative petition process

provides an opportunity for a petitioner to obtain in advance

[A]gency concurrence, based on sound science, with respect to

the classification of a particular feedstock under existing

regulations. In this respect, the administrative petition

process differs from the categorical non-waste

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determination…where EPA makes changes to the regulatory status

of certain non-hazardous secondary materials that are reflected

in the Code of Federal Regulations. Because the public – through

this rulemaking process – has an opportunity to provide input on

EPA’s regulations, there is no need to provide a second

opportunity for public comment when those regulations are

applied by the EPA in specific contexts through the

administrative petition process.”

In addition, other commenters indicated that public notice

and comment is not necessary, since the NHSM rulemaking process

has already taken comment on the methodology, in addition to

other rationale. In particular, one commenter stated,

“Streamlining could be further facilitated by recognizing that

solicitation of public comment on each individual application

would be redundant and unnecessary given the public’s ample

opportunity during this rulemaking to comment on the evaluation

criteria that will govern non-waste determination petitions.”

Another commenter stated, “The reason for public participation

in the hazardous waste petition process is that the materials

subject to the petition are to be removed from the hazardous

waste regulatory program. In the NHSM world, the secondary

materials subject to the petition are merely obtaining clarity

about regulatory status – they are not seeking a change in

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regulatory status. Therefore, the need for the full public

participation process is not necessary or warranted.”

Response: Although industry commenters argued that public

participation is unnecessary, the EPA still believes that public

participation is an important part of a transparent decision

making process and values how it increases transparency. In the

final rule, we will retain the public participation requirement

in order to promote public awareness.

7. Revised Introductory Text for 40 CFR 241.3(a)

As part of its discussion clarifying the non-waste

determination petition processes, the EPA noted that it had

examined a number of specific NHSMs and decided which were to be

considered solid wastes based on the record available at the

time the March 2011 final rule was issued.143 The rule itself had

stated at 40 CFR 241.3(a) that secondary materials were solid

wastes except for those described in section 241.3(b).

Essentially, section 241.3(b) is the operative section that

states what materials are not wastes. The purpose of the non-

waste determination petition process in section 241.3(c) and the

new proposed petition process in section 241.4 is to allow

various parties the opportunity to provide information and data

so that the EPA could decide what other NHSMs are not solid

wastes. The preamble stated that the agency proposed to amend

143 See 76 FR 80473.

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section 241.3(a) to state that such secondary materials are

“presumed to be” solid wastes except for those described in

section 241.3(b) in order to better reflect the rulemaking

record.

Comment: No commenters supported inclusion of the “presumed

to be” language in the rule.

Most of the commenters on the language argue that it means

that the EPA continues to improperly determine that certain

NHSMs are presumptively wastes. Commenters generally argue that

the “presumed to be” language shows that the EPA, in spite of

statements to the contrary, is continuing to make an

inappropriate determination that NHSMs transferred to other

parties are presumptively wastes until a combustor proves

otherwise. According to comments, the use of the “presumed to

be” language is a clear statement that the EPA is making the

presumption. The addition of these words does not change the

fact that, under the EPA’s regulatory framework, NHSMs are

wastes until proven otherwise.

Several commenters, in fact, argued that to address the

legal flaws in the proposal, the EPA should reverse the

presumption and presume that NHSMs burned for energy recovery or

used as an ingredient is not for the purpose of disposal and,

therefore, is not a waste.

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Response: The EPA is not addressing in this rulemaking the

comment that the agency has inappropriately made presumptions

about whether materials are wastes. This issue has not been

reopened. Instead, the agency has only opened very specific

issues on particular wastes.

In the December 2011, proposal at 76 FR 80473, the EPA

referred to the March 2011 preamble in which the agency stated

that it has not “arbitrarily determined that secondary materials

transferred between companies are wastes. Instead, the EPA has

evaluated whether certain categories of materials are discarded

or not. The Agency has not adopted the extremes of saying that

all burning of secondary material, regardless of ultimate use,

is waste treatment or that any secondary material that is

recycled for legitimate fuel value is a commodity and not a

waste. Wastes may have value, but are still wastes.” 76 FR

15471. Further, the agency stated that it “has examined a number

of specific materials, recycled within the control of the

generator and transferred to a third party for recycling, and

determined whether they would be appropriately placed within the

waste or non-waste categories.” Id. The EPA went on to examine a

number of different categories of NHSMs used as fuels and

ingredients that was summarized in the Federal Register (76 FR

15477-15520). The EPA cannot “reverse” a presumption that it

never made to declare that materials burned for energy recovery

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are presumptively non-wastes. Further, it would be entirely

improper for the agency to do so. The EPA has evaluated specific

groups of materials as to their waste status, while the comments

regarding reversal of a purported presumption have only

presented arguments “in broad abstraction, providing little

detail about the many processes throughout the industry that

generate residual material” that could be subject to this rule.

Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1056.144

Accordingly, the agency stands on its March 2011 rulemaking

record for the issues discussed in these comments.

Comment: Comments objected that the change in word choice

that materials are “presumed to be” solid wastes from the

statement that that materials “are” solid wastes (except as

otherwise provided in the regulation) still puts the burden to

prove material is not a waste on persons who use NHSMs in

combustion units. One comment, in particular, noted that there

would be no practical effect of the new language even though it

is viewed by the EPA as an “optically less drastic stance.” That

is, there would be no real leeway for a party in an enforcement

proceeding to counter the EPA’s prosecution based on the fact

144 Note how the April 4, 2012, letter from Timothy G. Hunt to James Berlow (a copy of which is in the docket for today’s rule), provided specific information on pulp and paper sludge where the EPA added a categorical determination based on specific information provided by industry.

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that the secondary material in question is only “presumed to be”

a waste, rather than the material “is” a waste.

Response: The EPA has decided not to retain the “presumed

to be” language, since it is unnecessary and does not actually

reflect the rulemaking record. No comment argued in favor of it.

In addition, there is no need to temper the existing language

stating that a material is a solid waste if it does not fall

within the section 241.3(b) categories or the non-waste

determination processes. As noted in the previous response to

comments regarding the agency’s “presumption” of the waste

status of materials, the agency stands on its March 2011

rulemaking record.

E. Cost and Benefits of the Final Rule

The RCRA aspects of this rule do not directly invoke any

costs (excluding minor administrative burden/cost), or benefits.

Any RCRA related costs to the regulated community, and

corresponding benefits to human health and the environment, have

been considered as part of the CISWI action, and the

corresponding CISWI and Boiler MACT (area source and major

source) final rules. As such, the agency has not prepared a

separate cost-benefit assessment in support of this part of the

final rule. Consequently, any potential costs or benefits,

including impacts to small entities, indirectly associated with

the RCRA aspects of this rule are addressed in the corresponding

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impact assessment prepared in support of the CISWI part of this

action.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and

Executive Order 13563: Improving Regulation and Regulatory

Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993),

this action is a “significant regulatory action” because it may

raise novel legal or policy issues. Accordingly, the EPA

submitted this action to OMB for review under Executive Order

12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made

in response to OMB recommendations have been documented in the

docket for this action.

In addition, the EPA prepared an update to the RIA of the

potential costs and benefits associated with this action. The

RIA available in the docket describes in detail the empirical

basis for the EPA’s assumptions and characterizes the various

sources of uncertainties affecting the estimates below and a

memo documents the updates since the RIA was prepared. Table 9

of this preamble shows the results of the cost and benefits

analysis for these final rules.

Table 9. Summary of the Monetized Benefits, Social Costs and Net Benefits for the Final CISWI NSPS and EG In 2015 (Millions of 2008$)1

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3 percent Discount


Rate

Total Monetized Benefits2

$420 to $1,000 $380 to $930

Total Social Costs3

$258 $258

Net Benefits $160 to $770 $120 to $670

Health effects from exposure to HAP 780 tons of HCl, 2.5 tons of lead, 1.8 tons of Cd, 680 pounds of Hg, and 58 grams of dioxins/furans)

Health effects from exposure to criteria pollutants (20,000 tons of CO, 6,300 tons of SO

2, 5,400 tons of NO

2, and secondary

formation of ozone)

Ecosystem effects

Non-monetized Benefits

Visibility impairment 1 All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal assumption.

2 The total monetized benefits reflect the human health benefits associated with reducing exposure to PM

2.5 through reductions of

PM2.5

precursors such as directly emitted particles, SO2, and

NOx. It is important to note that the monetized benefits

include many but not all health effects associated with PM2.5

exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effect estimates by particle type.

3 The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for both discount rates.

B. Paperwork Reduction Act

This action does not require any new information

collection. This action is believed to result in no additional

impact on the aggregate information collection estimate of

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project cost and hour burden made and approved by OMB. Due to

changes in the CISWI inventory and monitoring requirements of

the CISWI rule, the information collection estimate of project

cost and hour burden have been revised. Therefore, only the

CISWI ICR has been revised. The OMB control numbers for the

EPA’s regulations in 40 CFR are listed in 40 CFR part 9.

However, OMB has previously approved the information

collection requirements contained in the existing CISWI and

NHSM145 regulations (40 CFR part 60, subparts CCCC and DDDD, and

40 CFR part 241) under the provisions of the Paperwork Reduction

Act, 44 U.S.C. 3501, et seq., and has been assigned EPA ICR

number 2384.05 for subpart CCCC, 40 CFR part 60, EPA ICR number

2385.05 for subpart DDDD, 40 CFR part 60, and EPA ICR number

2382.03 for 40 CFR part 241.

C. Regulatory Flexibility Act

The RFA generally requires an agency to prepare a

regulatory flexibility analysis of any rule subject to notice

and comment rulemaking requirements under the APA or any other

statute unless the agency certifies that the rule will not have

a SISNOSE. Small entities include small businesses, small

organizations and small governmental jurisdictions.

145 Identification of Non-Hazardous Secondary Materials That Are Solid Waste, Final Rule. March 11, 2011.

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For purposes of assessing the impacts of today’s rule on

small entities, small entity is defined as: (1) a small business

as defined by the SBA’s regulations at 13 CFR 121.201; (2) a

small governmental jurisdiction that is a government of a city,

county, town, school district or special district with a

population of less than 50,000; or (3) a small organization that

is any not-for-profit enterprise that is independently owned and

operated and is not dominant in its field.

After considering the economic impacts of today’s final

rule on small entities, I certify that this action will not have

a SISNOSE. This final rule will not impose any new requirements

on any entities because it does not impose any additional

regulatory requirements relative to those specified in the March

2011 final CISWI and NHSM rules. The March 2011 final CISWI and

NHSM rules were both certified as not having a SISNOSE. In this

final action, there are four fewer small entities in the CISWI

than in the March 2011 final CISWI rule, as discussed in the

“Regulatory Impact Results for the Reconsideration Final for

Standards of Performance for New Stationary Sources and Emission

Guidelines for Existing Sources: Commercial and Industrial Solid

Waste Incineration Units” memorandum in the CISWI docket.

D. Unfunded Mandates Reform Act

This action does not contain a federal mandate that may

result in expenditures of $100 million or more for state, local

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and tribal governments, in the aggregate or the private sector

in any one year. This rule finalizes amendments to the final

CISWI rule provisions and technical clarifications to the final

NHSM rule. Thus, this rule is not subject to the requirements of

sections 202 or 205 of UMRA. However, the March 2011 final CISWI

rule contains a federal mandate that may result in expenditures

of $100 million or more for state, local and tribal governments,

in the aggregate, or the private sector in any 1 year.

Accordingly, we have prepared under section 202 of the UMRA a

written statement, which is summarized in the preamble to the

final CISWI rule (76 FR 15747).

This rule is also not subject to the requirements of

section 203 of UMRA because it contains no regulatory

requirements that might significantly or uniquely affect small

governments.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will

not have substantial direct effects on the states, on the

relationship between the national government and the states, or

on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order

13132. This final rule will not impose direct compliance costs

on state or local governments and will not preempt state law.

Thus, Executive Order 13132 does not apply to this action.

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F. Executive Order 13175: Consultation and Coordination with

Indian Tribal Governments

This action does not have tribal implications, as specified

in Executive Order 13175, (65 FR 67249, November 9, 2000). The

EPA is not aware of any CISWI in Indian country or owned or

operated by Indian tribal governments. The CISWI aspects of this

rule may, however, invoke minor indirect tribal implications to

the extent that entities generating solid wastes on tribal lands

could be affected. However, any indirect NHSM impacts that may

occur as a result of the CISWI action are expected to be

negligible due to the very limited focus of the CISWI part or

this rule. Thus, Executive Order 13175 does not apply to this

action.

G. Executive Order 13045: Protection of Children from

Environmental Health Risks and Safety Risks

The EPA interprets Executive Order 13045 (62 FR 19885,

April 23, 1997) as applying to those regulatory actions that

concern health or safety risks, such that the analysis required

under section 5-501 of the Executive Order has the potential to

influence the regulation. This action is not subject to

Executive Order 13045 because it is based solely on technology

performance and technical corrections.

H. Executive Order 13211: Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use

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This action is not subject to Executive Order 13211 (66 FR

28355, May 22, 2001), because it is not likely to have a

significant adverse effect on the supply, distribution, or use

of energy.

I. National Technology Transfer and Advancement Act

Section 12(d) of the NTTAA of 1995, Public Law No. 104-113,

12(d) (15 U.S.C. 272 note) directs the EPA to use VCS in its

regulatory activities, unless to do so would be inconsistent

with applicable law or otherwise impractical. Voluntary

consensus standards are technical standards (e.g., materials

specifications, test methods, sampling procedures and business

practices) that are developed or adopted by VCS bodies. The

NTTAA directs the EPA to provide Congress, through OMB,

explanations when the agency decides not use available and

applicable VCS.

This action does not involve any revisions to the technical

standards or test methods required in the final CISWI rule.

Therefore, the EPA did not reconsider the use of any VCS.

J. Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and Low-Income

Populations

Executive Order 12898 (59 FR 7629, February 16, 1994)

establishes federal executive policy on EJ. Its main provision

directs federal agencies, to the greatest extent practicable and

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permitted by law, to make EJ part of their mission by

identifying and addressing, as appropriate, disproportionately

high and adverse human health or environmental effects of their

programs, policies and activities on minority populations and

low-income populations in the United States.

The EPA has determined that this final rule will not have

disproportionately high and adverse human health or

environmental effects on minority or low-income populations

because it increases the level of environmental protection for

all affected populations without having any disproportionately

high and adverse human health or environmental effects on any

population, including any minority or low-income population. The

amendments do not relax the control measures on sources

regulated by the CISWI rule, and, therefore, will not cause

emissions increases from these sources. The March 2011 final

CISWI rule will reduce emissions of all the listed HAP emitted

from this source. Furthermore, the targeted revisions finalized

in the NHSM section of this rule are designed to improve the

management of these materials, thereby helping to further ensure

against any disproportionately high and adverse human health or

environmental effects on minority or low-income populations.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as

added by the SBREFA of 1996, generally provides that before a

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rule may take effect, the agency promulgating the rule must

submit a rule report, which includes a copy of the rule, to each

House of the Congress and to the Comptroller General of the

United States. The EPA will submit a report containing this rule

and other required information to the U.S. Senate, the U.S.

House of Representatives and the Comptroller General of the

United States prior to publication of the rule in the Federal

Register. A major rule cannot take effect until 60 days after it

is published in the Federal Register. This action is not a

“major rule” as defined by 5 U.S.C. 804(2). This rule will be

effective February 7, 2013.

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List of Subjects 40 CFR Part 60

Environmental protection, Administrative practice and

procedure, Air pollution control, Hazardous substances,

Incorporation by reference.

40 CFR Part 241

Environmental protection, air pollution control, waste

treatment and disposal.

Dated: December 20, 2012 Lisa P. Jackson, Administrator.

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For the reasons cited in the preamble, Title 40,

chapter I, parts 60 and 241 of the Code of Federal

Regulations are amended as follows:

PART 60— STANDARDS OF PERFORMANCE FOR NEW STATIONARY

SOURCES

1. The authority for part 60 continues to read as

follows:

Authority: 42 U.S.C. 7401, et seq.

2. Effective February 7, 2013, the May 18, 2011 (76

FR 28662), delay of the effective date amending subparts

CCCC and DDDD, at 76 FR 15703 (March 21, 2011), is lifted.

Subpart CCCC—[Amended]

3. Section 60.2005 is revised to read as follows:

§60.2005 When does this subpart become effective?

This subpart takes effect on August 7, 2013. Some of

the requirements in this subpart apply to planning the

CISWI unit (i.e., the preconstruction requirements in §§

60.2045 and 60.2050). Other requirements such as the

emission limitations and operating limits apply after the

CISWI unit begins operation.

4. Section 60.2015 is amended by revising paragraphs

(a)(1) and (2) and (b) to read as follows:

§60.2015 What is a new incineration unit?

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(a) * * *

(1) A CISWI unit that commenced construction after

June 4, 2010.

(2) A CISWI unit that commenced reconstruction or

modification after August 7, 2013.

(b) This subpart does not affect your CISWI unit if

you make physical or operational changes to your

incineration unit primarily to comply with subpart DDDD of

this part (Emission Guidelines and Compliance Times for

Commercial and Industrial Solid Waste Incineration Units).

Such changes do not qualify as reconstruction or

modification under this subpart.

5. Section 60.2020 is amended by:

a. Revising paragraph (c).

b. Revising paragraph (e)(3).

c. Adding paragraph (e)(4).

d. Revising paragraph (f)(3).

e. Adding paragraph (f)(4).

f. Revising paragraph (n).

g. Adding paragraph (o).

The revisions and additions read as follows:

§60.2020 What combustion units are exempt from this

subpart?

* * * * *

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(c) Municipal waste combustion units. Incineration

units that are subject to subpart Ea of this part

(Standards of Performance for Municipal Waste Combustors);

subpart Eb of this part (Standards of Performance for Large

Municipal Waste Combustors); subpart Cb of this part

(Emission Guidelines and Compliance Time for Large

Municipal Combustors);subpart AAAA of this part (Standards

of Performance for Small Municipal Waste Combustion Units);

or subpart BBBB of this part (Emission Guidelines for Small

Municipal Waste Combustion Units).

* * * * *

(e) * * *

(3) You submit documentation to the Administrator

notifying the EPA that the qualifying small power

production facility is combusting homogenous waste.

(4) You maintain the records specified in §

60.2175(w).

(f) * * *


notifying the Agency that the qualifying cogeneration

facility is combusting homogenous waste.


60.2175(x).

* * * * *

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(n) Sewage sludge incineration units. Incineration

units combusting sewage sludge for the purpose of reducing

the volume of the sewage sludge by removing combustible

matter that are subject to subpart LLLL of this part

(Standards of Performance for Sewage Sludge Incineration

Units) or subpart MMMM of this part (Emission Guidelines

for Sewage Sludge Incineration Units).

(o) Other solid waste incineration units. Incineration

units that are subject to subpart EEEE of this part

(Standards of Performance for Other Solid Waste

Incineration Units) or subpart FFFF of this part (Emission

Guidelines and Compliance Times for Other Solid Waste

Incineration Units).

6. Section 60.2030 is amended by revising paragraph

(c)(10) to read as follows:

§ 60.2030 Who implements and enforces this subpart?

* * * * *

(c) * * *

(10) Determination of whether a qualifying small power

production facility or cogeneration facility under §

60.2020(e) or (f) is combusting homogenous waste.


(b) to read as follows:

§ 60.2045 Who must prepare a siting analysis?

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* * * * *

(b) You must prepare a siting analysis for CISWI units

that commenced construction after June 4, 2010, or that

commenced reconstruction or modification after August 7,

2013.

* * * * *



§ 60.2105 What emission limitations must I meet and by

when?

* * * * *

(b) An incinerator unit that commenced construction

after November 30, 1999, but no later than June 4, 2010, or

that commenced reconstruction or modification on or after

June 1, 2001 but no later than August 7, 2013, must meet

the more stringent emission limit for the respective

pollutant in table 1 of this subpart or table 6 of subpart

DDDD.


a. Revising paragraphs (a)(2), (e), and (f).

b. Redesignating paragraph (g) as paragraph (h) and

revising newly designated paragraph (h).

c. Adding paragraphs (g) and (i).


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§ 60.2110 What operating limits must I meet and by when?

(a) * * *

(2) Minimum pressure drop across the wet particulate

matter scrubber, which is calculated as the lowest 1-hour

average pressure drop across the wet scrubber measured

during the most recent performance test demonstrating

compliance with the particulate matter emission

limitations; or minimum amperage to the wet scrubber, which

is calculated as the lowest 1-hour average amperage to the

wet scrubber measured during the most recent performance

test demonstrating compliance with the particulate matter

emission limitations.

* * * * *

(e) If you use activated carbon sorbent injection to

comply with the emission limitations, you must measure the

sorbent flow rate during the performance testing. The

operating limit for the carbon sorbent injection is

calculated as the lowest 1-hour average sorbent flow rate

measured during the most recent performance test

demonstrating compliance with the mercury emission

limitations. For energy recovery units, when your unit

operates at lower loads, multiply your sorbent injection

rate by the load fraction, as defined in this subpart, to

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determine the required injection rate (e.g., for 50 percent

load, multiply the injection rate operating limit by 0.5).

(f) If you use selective noncatalytic reduction to


charge rate, the secondary chamber temperature (if

applicable to your CISWI unit), and the reagent flow rate

during the nitrogen oxides performance testing. The

operating limits for the selective noncatalytic reduction

are calculated as the highest 1-hour average charge rate,

lower secondary chamber temperature, and lowest reagent

flow rate measured during the most recent performance test

demonstrating compliance with the nitrogen oxides emission

limitations.

(g) If you use a dry scrubber to comply with the

emission limitations, you must measure the injection rate

of each sorbent during the performance testing. The

operating limit for the injection rate of each sorbent is

calculated as the lowest 1-hour average injection rate or

each sorbent measured during the most recent performance

test demonstrating compliance with the hydrogen chloride

emission limitations. For energy recovery units, when your

unit operates at lower loads, multiply your sorbent

injection rate by the load fraction, as defined in this

subpart, to determine the required injection rate (e.g.,

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for 50 percent load, multiply the injection rate operating

limit by 0.5).

(h) If you do not use a wet scrubber, electrostatic

precipitator, or fabric filter to comply with the emission

limitations, and if you do not determine compliance with

your particulate matter emission limitation with a

particulate matter CEMS, you must maintain opacity to less

than or equal to 10 percent opacity (1-hour block average).

(i) If you use a PM CPMS to demonstrate compliance,

you must establish your PM CPMS operating limit and

determine compliance with it according to paragraphs (i)(1)

through (5) of this section.

(1) Determine your operating limit as the average PM

CPMS output value recorded during the performance test or

at a PM CPMS output value corresponding to 75% of the

emission limit if your PM performance test demonstrates

compliance below 75% of the emission limit. You must verify

an existing or establish a new operating limit after each

repeated performance test. You must repeat the performance

test annually and reassess and adjust the site-specific

operating limit in accordance with the results of the

performance test.

(A) Your PM CPMS must provide a 4-20 milliamp output

and the establishment of its relationship to manual

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reference method measurements must be determined in

units of milliamps.

(B) Your PM CPMS operating range must be capable of

reading PM concentrations from zero to a level

equivalent to at least two times your allowable

emission limit. If your PM CPMS is an auto-ranging

instrument capable of multiple scales, the primary

range of the instrument must be capable of reading PM

concentration from zero to a level equivalent to two

times your allowable emission limit.

(C) During the initial performance test or any such

subsequent performance test that demonstrates

compliance with the PM limit, record and average all

milliamp output values from the PM CPMS for the

periods corresponding to the compliance test runs

(e.g., average all your PM CPMS output values for

three corresponding 2-hour Method 5I test runs).

(2) If the average of your three PM performance test

runs are below 75% of your PM emission limit, you must

calculate an operating limit by establishing a relationship

of PM CPMS signal to PM concentration using the PM CPMS

instrument zero, the average PM CPMS values corresponding

to the three compliance test runs, and the average PM

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concentration from the Method 5 or performance test with

the procedures in (i)(1)through (5) of this section.

(i) Determine your instrument zero output with one of

the following procedures:

(A) Zero point data for in-situ instruments should be

obtained by removing the instrument from the stack and

monitoring ambient air on a test bench.

(B) Zero point data for extractive instruments should

be obtained by removing the extractive probe from the

stack and drawing in clean ambient air.

(C) The zero point can also can be established

obtained by performing manual reference method

measurements when the flue gas is free of PM emissions

or contains very low PM concentrations (e.g., when

your process is not operating, but the fans are

operating or your source is combusting only natural

gas) and plotting these with the compliance data to

find the zero intercept.

(D) If none of the steps in paragraphs (i)(2)(i)

through (iv) of this section are possible, you must

use a zero output value provided by the manufacturer.

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(ii) Determine your PM CPMS instrument average in

milliamps, and the average of your corresponding three

PM compliance test runs, using equation 1.

(Eq. 1) Where:

X1 = the PM CPMS data points for the three runs

constituting the performance test,

Y1 = the PM concentration value for the three runs

constituting the performance test, and

n = the number of data points.

(iii) With your instrument zero expressed in

milliamps, your three run average PM CPMS milliamp

value, and your three run average PM concentration

from your three compliance tests, determine a

relationship of lb/Mmbtu per milliamp with equation 2.

( )zXY−

=1

1 R

(Eq. 2)

Where: R = the relative mg/dscm per milliamp for your PM

CPMS,

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Y1 = the three run average mg/dscm PM

concentration,

X1 = the three run average milliamp output from

you PM CPMS, and

z = the milliamp equivalent of your instrument

zero determined from (2)(i).

(iv) Determine your source specific 30-day rolling

average operating limit using the mg/dscm per milliamp

value from Equation 2 in equation 3, below. This sets

your operating limit at the PM CPMS output value

corresponding to 75% of your emission limit.

(Eq. 3)

Where: Ol = the operating limit for your PM CPMS on a 30-

day rolling average, in milliamps.

L = your source emission limit expressed in

lb/Mmbtu,

z = your instrument zero in milliamps, determined

from (2)(a), and

R = the relative mg/dscm per milliamp for your PM

CPMS, from Equation 3.

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(3) If the average of your three PM compliance test

runs is at or above 75% of your PM emission limit you must

determine your operating limit by averaging the PM CPMS

milliamp output corresponding to your three PM performance

test runs that demonstrate compliance with the emission

limit using equation 4 and you must submit all compliance

test and PM CPMS data according to the reporting

requirements in paragraph (i)(5) of this section.

(Eq. 4) Where: X1 = the PM CPMS data points for all runs i,

n = the number of data points, and

Oh = your site specific operating limit, in

milliamps.

(4) To determine continuous compliance, you must

record the PM CPMS output data for all periods when the

process is operating and the PM CPMS is not out-of-control.

You must demonstrate continuous compliance by using all

quality-assured hourly average data collected by the PM

CPMS for all operating hours to calculate the arithmetic

average operating parameter in units of the operating limit

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(e.g., milliamps, PM concentration, raw data signal) on a

30-day rolling average basis.

(5) For PM performance test reports used to set a PM

CPMS operating limit, the electronic submission of the test

report must also include the make and model of the PM CPMS

instrument, serial number of the instrument, analytical

principle of the instrument (e.g., beta attenuation), span

of the instruments primary analytical range, milliamp value

equivalent to the instrument zero output, technique by

which this zero value was determined, and the average

milliamp signals corresponding to each PM compliance test

run.

10. Section 60.2115 is amended by revising the

section heading and the introductory text to read as

follows:

§ 60.2115 What if I do not use a wet scrubber, fabric

filter, activated carbon injection, selective noncatalytic

reduction, an electrostatic precipitator, or a dry scrubber

to comply with the emission limitations?

If you use an air pollution control device other than

a wet scrubber, activated carbon injection, selective

noncatalytic reduction, fabric filter, an electrostatic

precipitator, or a dry scrubber or limit emissions in some

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other manner, including material balances, to comply with

the emission limitations under §60.2105, you must petition

the EPA Administrator for specific operating limits to be

established during the initial performance test and

continuously monitored thereafter. You must submit the

petition at least sixty days before the performance test is

scheduled to begin. Your petition must include the five

items listed in paragraphs (a) through (e) of this section.

* * * * *


§ 60.2120 Affirmative defense for violation of emission

standards during malfunction.

In response to an action to enforce the standards set

forth in paragraph § 60.2105 you may assert an affirmative

defense to a claim for civil penalties for violations of

such standards that are caused by malfunction, as defined

at 40 CFR 60.2. Appropriate penalties may be assessed if

you fail to meet your burden of proving all of the

requirements in the affirmative defense. The affirmative

defense shall not be available for claims for injunctive

relief.

(a) Assertion of affirmative defense. To establish the

affirmative defense in any action to enforce such a

standard, you must timely meet the reporting requirements

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in paragraph (b) of this section, and must prove by a

preponderance of evidence that:

(1) The violation:

(i) Was caused by a sudden, infrequent, and

unavoidable failure of air pollution control equipment,

process equipment, or a process to operate in a normal or

usual manner; and

(ii) Could not have been prevented through careful

planning, proper design or better operation and maintenance

practices; and

(iii) Did not stem from any activity or event that

could have been foreseen and avoided, or planned for; and

(iv) Was not part of a recurring pattern indicative

of inadequate design, operation, or maintenance; and

(2) Repairs were made as expeditiously as possible when a

violation occurred; and

(3) The frequency, amount, and duration of the violation

(including any bypass) were minimized to the maximum extent

practicable; and

(4) If the violation resulted from a bypass of control

equipment or a process, then the bypass was unavoidable to

prevent loss of life, personal injury, or severe property

damage; and

(5) All possible steps were taken to minimize the impact of

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the violation on ambient air quality, the environment, and

human health; and

(6) All emissions monitoring and control systems were kept

in operation if at all possible, consistent with safety and

good air pollution control practices; and

(7) All of the actions in response to the violation were

documented by properly signed, contemporaneous operating

logs; and

(8) At all times, the affected source was operated in a

manner consistent with good practices for minimizing

emissions; and

(9) A written root cause analysis has been prepared, the

purpose of which is to determine, correct, and eliminate

the primary causes of the malfunction and the violation

resulting from the malfunction event at issue. The analysis

shall also specify, using best monitoring methods and

engineering judgment, the amount of any emissions that were

the result of the malfunction.

(b) Report. The owner or operator seeking to assert an

affirmative defense shall submit a written report to the

Administrator with all necessary supporting documentation,

that it has met the requirements set forth in paragraph (a)

of this section. This affirmative defense report shall be

included in the first periodic compliance, deviation report

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or excess emission report otherwise required after the

initial occurrence of the violation of the relevant

standard (which may be the end of any applicable averaging

period). If such compliance, deviation report or excess

emission report is due less than 45 days after the initial

occurrence of the violation, the affirmative defense report

may be included in the second compliance, deviation report

or excess emission report due after the initial occurrence

of the violation of the relevant standard.


a. Revising paragraph (g) introductory text.

b. Redesignating paragraphs (g)(2) and (3) as

paragraphs (g)(3) and (4), respectively.

c. Revising newly designated paragraphs (g)(3) and

(4).

d. Adding new paragraph (g)(2).

e. Revising paragraph (i).

f. Adding paragraph (j).


§ 60.2125 How do I conduct the initial and annual

performance test?

* * * * *

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(g) You must determine dioxins/furans toxic

equivalency by following the procedures in paragraphs

(g)(1) through (4) of this section.

* * * * *

(2) Quantify isomers meeting identification criteria

2, 3, 4, and 5 in Section 5.3.2.5 of Method 23, regardless

of whether the isomers meet identification criteria 1 and

7. You must quantify the isomers per Section 9.0 of Method

23. (Note: You may reanalyze the sample aliquot or split

to reduce the number of isomers not meeting identification

criteria 1 or 7 of Section 5.3.2.5.)

(3) For each dioxin/furan (tetra-through octa-

chlorinated) isomer measured in accordance with paragraph

(g)(1) and (2) of this section, multiply the isomer

concentration by its corresponding toxic equivalency factor

specified in table 3 of this subpart.

(4) Sum the products calculated in accordance with

paragraph (g)(3) of this section to obtain the total

concentration of dioxins/furans emitted in terms of toxic

equivalency.

* * * * *

(i) If you have an applicable opacity operating limit,

you must determine compliance with the opacity limit using

Method 9 at 40 CFR part 60, appendix A-4 of this part,

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based on three 1-hour blocks consisting of ten 6-minute

average opacity values, unless you are required to install

a continuous opacity monitoring system, consistent with §§

60.2145 and 60.2165.

(j) You must determine dioxins/furans total mass basis

by following the procedures in paragraphs (j)(1) through

(3) of this section.

(1) Measure the concentration of each dioxin/furan

tetra-through octa-chlorinated isomer emitted using EPA

Method 23 at 40 CFR part 60, appendix A-7.








(3) Sum the quantities measured in accordance with

paragraphs (j)(1) and (2) of this section to obtain the

total concentration of dioxins/furans emitted in terms of

total mass basis.


(c) to read as follows:

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§ 60.2140 By what date must I conduct the initial

performance test?

* * * * *

(c) If you commence combusting or recommence

combusting a solid waste at an existing combustion unit at

any commercial or industrial facility and you have not

conducted a performance test consistent with the provisions

of this subpart while combusting the solid waste within the

6 months preceding the reintroduction of that solid waste

in the combustion chamber, you must conduct a performance

test within 60 days commencing or recommencing solid waste

combustion.


a. Revising paragraph (a)(6).

b. Revising paragraphs (b) through (d).

c. Revising paragraphs (f) through (j).

d. Revising paragraph (m)(2).

e. Revising paragraph (n)(4).

f. Revising paragraphs (s) introductory text, (s)(1)

introductory text, and (s)(2).

g. Revising paragraph (t) introductory text and (t)(1)

introductory text.

h. Revising paragraph (u).

i. Adding paragraphs (w) and (x).

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§ 60.2145 How do I demonstrate continuous compliance with

the emission limitations and the operating limits?

(a) * * *

(6) All monitoring systems necessary for compliance

with any newly applicable monitoring requirements which

apply as a result of the cessation or commencement or

recommencement of combusting solid waste must be installed

and operational as of the effective date of the waste-to-

fuel, or fuel-to-waste switch. All calibration and drift

checks must be performed as of the effective date of the

waste-to-fuel, or fuel-to-waste switch. Relative accuracy

tests must be performed as of the performance test deadline

for PM CEMS (if PM CEMS are elected to demonstrate

continuous compliance with the particulate matter emission

limits). Relative accuracy testing for other CEMS need not

be repeated if that testing was previously performed

consistent with Clean Air Act section 112 monitoring

requirements or monitoring requirements under this subpart.

(b) You must conduct an annual performance test for

the pollutants listed in table 1 of this subpart or tables

5 through 8 of this subpart and opacity for each CISWI unit

as required under § 60.2125. The annual performance test

must be conducted using the test methods listed in table 1

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of this subpart or tables 5 through 8 of this subpart and

the procedures in § 60.2125. Annual performance tests are

not required if you use CEMS or continuous opacity

monitoring systems to determine compliance.

(c) You must continuously monitor the operating

parameters specified in § 60.2110 or established under §

60.2115 and as specified in §60.2170. Use 3-hour block

average values to determine compliance (except for baghouse

leak detection system alarms) unless a different averaging

period is established under § 60.2115 or, for energy

recovery units, where the averaging time for each operating

parameter is a 30-day rolling, calculated each hour as the

average of the previous 720 operating hours. Operation

above the established maximum, below the established

minimum, or outside the allowable range of operating limits

specified in paragraph (a) of this section constitutes a

deviation from your operating limits established under this

subpart, except during performance tests conducted to

determine compliance with the emission and operating limits

or to establish new operating limits. Operating limits are

confirmed or reestablished during performance tests.

(d) You must burn only the same types of waste and

fuels used to establish subcategory applicability (for

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energy recovery units) and operating limits during the

performance test.

* * * * *

(f) For energy recovery units, you must conduct an

annual performance test for opacity (except where

particulate matter CEMS or continuous opacity monitoring

systems are used are used) and the pollutants listed in

table 6 of this subpart.

(g) You may elect to demonstrate continuous compliance

with the carbon monoxide emission limit using a carbon

monoxide CEMS according to the following requirements:

(1) You must measure emissions according to § 60.13 to

calculate 1-hour arithmetic averages, corrected to 7

percent oxygen. CEMS data during startup and shutdown, as

defined in this subpart, are not corrected to 7 percent

oxygen, and are measured at stack oxygen content. You must

demonstrate initial compliance with the carbon monoxide

emissions limit using a 30-day rolling average of these 1-

hour arithmetic average emission concentrations, including

CEMS data during startup and shutdown as defined in this

subpart, calculated using Equation 19-19 in section 12.4.1

of EPA Reference Method 19 at 40 CFR part 60, appendix A–7

of this part.

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(2) Operate the carbon monoxide CEMS in accordance

with the requirements of performance specification 4A of

appendix B of this part and quality assurance procedure 1

of appendix F of this part.

(h) Coal and liquid/gas energy recovery units with

average annual heat input rates greater than or equal to

250 MMBtu/hr may elect to demonstrate continuous compliance

with the particulate matter emissions limit using a

particulate matter CEMS according to the procedures in §

60.2165(n) instead of the particulate matter continuous

parameter monitoring system (CPMS) specified in §60.2145.

Coal and liquid/gas energy recovery units with annual

average heat input rates less than 250 MMBtu/hr,

incinerators, and small remote incinerators may also elect

to demonstrate compliance using a particulate matter CEMS

according to the procedures in § 60.2165(n) instead of

particulate matter testing with EPA Method 5 at 40 CFR part

60, appendix A-3 and, if applicable, the continuous opacity

monitoring requirements in paragraph (i) of this section.

(i) For energy recovery units with annual average heat

input rates greater than or equal to 10 MMBtu/hour and less

than 250 MMBtu/hr, you must install, operate, certify and

maintain a continuous opacity monitoring system (COMS)

according to the procedures in § 60.2165.

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(j) For waste-burning kilns, you must conduct an

annual performance test for cadmium, lead, dioxins/furans

and hydrogen chloride as listed in table 7 of this subpart.

You must determine compliance with hydrogen chloride using

a hydrogen chloride CEMS if you do not use an acid gas wet

scrubber or dry scrubber. You must determine compliance

with nitrogen oxides, sulfur dioxide, and carbon monoxide

using CEMS. You must determine compliance with particulate

matter using CPMS. You must determine compliance with the

mercury emissions limit using a mercury CEMS according to

the following requirements:

(1) Operate a CEMS system in accordance with

performance specification 12A of 40 CFR part 60, appendix B

or a sorbent trap based integrated monitor in accordance

with performance specification 12B of 40 CFR part 60,

appendix B. The duration of the performance test must be a

calendar month. For each calendar month in which the waste-

burning kiln operates, hourly mercury concentration data,

and stack gas volumetric flow rate data must be obtained.

You must demonstrate compliance with the mercury emissions

limit using a 30-day rolling average of these 1-hour

mercury concentrations, including CEMS data during startup

and shutdown as defined in this subpart, calculated using

Equation 19-19 in section 12.4.1 of EPA Reference Method 19

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at 40 CFR part 60, appendix A–7 of this part. CEMS data

during startup and shutdown, as defined in this subpart,

are not corrected to 7 percent oxygen, and are measured at

stack oxygen content.

(2) Owners or operators using a mercury CEMS must

install, operate, calibrate, and maintain an instrument for

continuously measuring and recording the mercury mass

emissions rate to the atmosphere according to the

requirements of performance specifications 6 and 12A of 40

CFR part 60, appendix B, and quality assurance procedure 6

of 40 CFR part 60, appendix F.

(3) The owner or operator of a waste-burning kiln must

demonstrate initial compliance by operating a mercury CEMS

while the raw mill of the in-line kiln/raw mill is

operating under normal conditions and including at least

one period when the raw mill is off.

* * * * *

(m) * * *

(2) Use a flow sensor with a measurement sensitivity

at full scale of no greater than 2 percent.

* * * * *

(n) * * *

(4) Perform checks at the frequency outlined in your

site-specific monitoring plan to ensure pressure

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measurements are not obstructed (e.g., check for pressure

tap pluggage daily).

* * * * *

(s) For facilities using a CEMS to demonstrate

compliance with the sulfur dioxide emission limit,

compliance with the sulfur dioxide emission limit may be

demonstrated by using the CEMS specified in §60.2165 to

measure sulfur dioxide. CEMS data during startup and

shutdown, as defined in this subpart, are not corrected to

7 percent oxygen, and are measured at stack oxygen content.

You must calculate a 30-day rolling average of the 1-hour

arithmetic average emission concentrations, including CEMS

data during startup and shutdown as defined in this


of EPA Reference Method 19 at 40 CFR part 60, Appendix A-7

of this part. The sulfur dioxide CEMS must be operated

according to performance specification 2 in appendix B of

this part and must follow the procedures and methods

specified in this paragraph (s). For sources that have

actual inlet emissions less than 100 parts per million dry

volume, the relative accuracy criterion for inlet sulfur

dioxide CEMS should be no greater than 20 percent of the

mean value of the reference method test data in terms of

the units of the emission standard, or 5 parts per million

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dry volume absolute value of the mean difference between

the reference method and the CEMS, whichever is greater.

(1) During each relative accuracy test run of the CEMS

required by performance specification 2 in appendix B of

this part, collect sulfur dioxide and oxygen (or carbon

dioxide) data concurrently (or within a 30- to 60-minute

period) with both the CEMS and the test methods specified

in paragraphs (s)(1)(i) and (ii) of this section.

* * * * *

(2) The span value of the CEMS at the inlet to the

sulfur dioxide control device must be 125 percent of the

maximum estimated hourly potential sulfur dioxide emissions

of the unit subject to this rule. The span value of the

CEMS at the outlet of the sulfur dioxide control device

must be 50 percent of the maximum estimated hourly

potential sulfur dioxide emissions of the unit subject to

this rule.

* * * * *

(t) For facilities using a CEMS to demonstrate

continuous compliance with the nitrogen oxides emission

limit, compliance with the nitrogen oxides emission limit

may be demonstrated by using the CEMS specified in §60.2165

to measure nitrogen oxides. CEMS data during startup and


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subpart, using Equation 19-19 in section 12.4.1 of EPA

Reference Method 19 at 40 CFR part 60, appendix A-7 of this

part. The nitrogen oxides CEMS must be operated according

to performance specification 2 in appendix B of this part

and must follow the procedures and methods specified in

paragraphs (t)(1) through (5) of this section.


required by performance specification 2 of appendix B of

this part, collect nitrogen oxides and oxygen (or carbon



in paragraphs (t)(1)(i) and (ii) of this section.

* * * * *

(u) For facilities using a CEMS to demonstrate

continuous compliance with any of the emission limits of

this subpart, you must complete the following:

(1) Demonstrate compliance with the appropriate

emission limit(s) using a 30-day rolling average of 1-hour



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of EPA Reference Method 19 at 40 CFR part 60, appendix A-7

of this part. CEMS data during startup and shutdown, as

defined in the subpart, are not corrected to 7 percent

oxygen, and are measured at stack oxygen content.

(2) Operate all CEMS in accordance with the applicable

procedures under appendices B and F of this part.

* * * * *

(w) For energy recovery units with a design heat input

capacity of 100 MMBtu per hour or greater that do not use a

carbon monoxide CEMS, you must install, operate, and

maintain a oxygen analyzer system as defined in § 60.2265

according to the procedures in paragraphs (w)(1) through


(1) The oxygen analyzer system must be installed by

the initial performance test date specified in §60.2675.

(2) You must operate the oxygen trim system within

compliance with paragraph (w)(3) of this section at all

times.

(3) You must maintain the oxygen level such that the

30-day rolling average that is established as the operating

limit for oxygen is not below the lowest hourly average

oxygen concentration measured during the most recent CO

performance test.

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(4) You must calculate and record a 30-day rolling

average oxygen concentration using Equation 19-19 in

section 12.4.1 of EPA Reference Method 19 of Appendix A-7

of this part.

(x) For energy recovery units with annual average heat

input rates greater than or equal to 250 MMBtu/hour and

waste-burning kilns, you must install, calibrate, maintain,

and operate a PM CPMS and record the output of the system

as specified in paragraphs (x)(1) through (8) of this

section. For other energy recovery units, you may elect to

use PM CPMS operated in accordance with this section. PM

CPMS are suitable in lieu of using other CMS for monitoring

PM compliance (e.g., bag leak detectors, ESP secondary

power, PM scrubber pressure).

(1) Install, calibrate, operate, and maintain your PM

CPMS according to the procedures in your approved site-

specific monitoring plan developed in accordance with §

60.2145(l) and (x)(1)(i) through (iii) of this section.

(i) The operating principle of the PM CPMS must be

based on in-stack or extractive light scatter, light

scintillation, beta attenuation, or mass accumulation

detection of the exhaust gas or representative sample. The

reportable measurement output from the PM CPMS must be

expressed as milliamps.

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(ii) The PM CPMS must have a cycle time (i.e., period

required to complete sampling, measurement, and reporting

for each measurement) no longer than 60 minutes.

(iii) The PM CPMS must be capable of detecting and

responding to particulate matter concentrations of no

greater than 0.5 mg/actual cubic meter.

(2) During the initial performance test or any such

subsequent performance test that demonstrates compliance

with the PM limit, you must adjust the site-specific


performance test according to the procedures specified in

§60.2110.

(3) Collect PM CPMS hourly average output data for all

energy recovery unit or waste-burning kiln operating hours.

Express the PM CPMS output as milliamps.

(4) Calculate the arithmetic 30-day rolling average of

all of the hourly average PM CPMS output collected during

all energy recovery unit or waste-burning kiln operating

hours data (milliamps).

(5) You must collect data using the PM CPMS at all

times the energy recovery unit or waste-burning kiln is

operating and at the intervals specified in paragraph

(x)(1)(ii) of this section, except for periods of

monitoring system malfunctions, repairs associated with

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monitoring system malfunctions, required monitoring system

quality assurance or quality control activities (including,

as applicable, calibration checks and required zero and

span adjustments), and any scheduled maintenance as defined

in your site-specific monitoring plan.

(6) You must use all the data collected during all

energy recovery unit or waste-burning kiln operating hours

in assessing the compliance with your operating limit

except:

(i) Any data collected during monitoring system

malfunctions, repairs associated with monitoring system

malfunctions, or required monitoring system quality

assurance or quality control activities conducted during

monitoring system malfunctions are not used in calculations

(report any such periods in your annual deviation report);

(ii) Any data collected during periods when the

monitoring system is out of control as specified in your

site-specific monitoring plan, repairs associated with

periods when the monitoring system is out of control, or

required monitoring system quality assurance or quality

control activities conducted during out-of-control periods

are not used in calculations (report emissions or operating

levels and report any such periods in your annual deviation

report);

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(iii) Any PM CPMS data recorded during periods of CEMS

data during startup and shutdown, as defined in this

subpart.

(7) You must record and make available upon request

results of PM CPMS system performance audits, as well as

the dates and duration of periods from when the PM CPMS is

out of control until completion of the corrective actions

necessary to return the PM CPMS to operation consistent

with your site-specific monitoring plan.

(8) For any deviation of the 30-day rolling average PM

CPMS average value from the established operating parameter

limit, you must:

(i) Within 48 hours of the deviation, visually inspect

the air pollution control device;

(ii) If inspection of the air pollution control device

identifies the cause of the deviation, take corrective

action as soon as possible and return the PM CPMS

measurement to within the established value; and

(iii) Within 30 days of the deviation or at the time

of the annual compliance test, whichever comes first,

conduct a PM emissions compliance test to determine

compliance with the PM emissions limit and to verify.

Within 45 days of the deviation, you must re-establish the

CPMS operating limit. You are not required to conduct

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additional testing for any deviations that occur between

the time of the original deviation and the PM emissions

compliance test required under this paragraph.

(iv) PM CPMS deviations leading to more than four

required performance tests in a 12-month process operating

period (rolling monthly) constitute a violation of this

subpart.



b. Revising paragraphs (g) through (k).

c. Revising paragraphs (l)(1) and (2).

d. Revising paragraph (m) introductory text.

e. Revising paragraph (n) introductory text.

f. Removing paragraph (n)(14).

g. Revising paragraphs (n)(6), (n)(7), (n)(9) through

(n)(11), (n)(12) introductory text, and (n)(12)(ii).

h. Revising paragraphs (o)(1) and (2).

i. Adding paragraphs (q), (r), and (s).


§ 60.2165 What monitoring equipment must I install and what

parameters must I monitor?

* * * * *

(c) If you are using something other than a wet

scrubber, activated carbon, selective non-catalytic

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to comply with the emission limitations under §60.2105, you

must install, calibrate (to the manufacturers’

specifications), maintain, and operate the equipment

necessary to monitor compliance with the site-specific

operating limits established using the procedures in §

60.2115.

* * * * *

(g) For waste-burning kilns not equipped with a wet

scrubber or dry scrubber, in place of hydrogen chloride

testing with EPA Method 321 at 40 CFR part 63, appendix A,

an owner or operator must install, calibrate, maintain, and

operate a CEMS for monitoring hydrogen chloride emissions

discharged to the atmosphere and record the output of the

system. To demonstrate continuous compliance with the

hydrogen chloride emissions limit for units other than

waste-burning kilns not equipped with a wet scrubber or dry

scrubber, a facility may substitute use of a hydrogen

chloride CEMS for conducting the hydrogen chloride annual

performance test, monitoring the minimum hydrogen chloride

sorbent flow rate, monitoring the minimum scrubber liquor

pH, and monitoring minimum injection rate.

(h) To demonstrate continuous compliance with the

particulate matter emissions limit, a facility may

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substitute use of a particulate matter CEMS for conducting

the PM annual performance test and using other CMS for

monitoring PM compliance (e.g., bag leak detectors, ESP

secondary power, PM scrubber pressure).

(i) To demonstrate continuous compliance with the

dioxin/furan emissions limit, a facility may substitute use

of a continuous automated sampling system for the

dioxin/furan annual performance test. You must record the

output of the system and analyze the sample according to

EPA Method 23 at 40 CFR part 60, appendix A-7 of this part.

This option to use a continuous automated sampling system

takes effect on the date a final performance specification

applicable to dioxin/furan from continuous monitors is

published in the Federal Register. The owner or operator

who elects to continuously sample dioxin/furan emissions

instead of sampling and testing using EPA Method 23 at 40

CFR part 60, appendix A-7 must install, calibrate,

maintain, and operate a continuous automated sampling

system and must comply with the requirements specified in

§60.58b(p) and (q). A facility may substitute continuous

dioxin/furan monitoring for the minimum sorbent flow rate,

if activated carbon sorbent injection is used solely for

compliance with the dioxin/furan emission limit.

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(j) To demonstrate continuous compliance with the

mercury emissions limit, a facility may substitute use of a

continuous automated sampling system for the mercury annual

performance test. You must record the output of the system

and analyze the sample at set intervals using any suitable

determinative technique that can meet performance

specification 12B. The owner or operator who elects to

continuously sample mercury emissions instead of sampling

and testing using EPA Reference Method 29 or 30B at 40 CFR

part 60, appendix A-8 of this part, ASTM D6784-02

(Reapproved 2008) (incorporated by reference, see §60.17),

or an approved alternative method for measuring mercury

emissions, must install, calibrate, maintain, and operate a

continuous automated sampling system and must comply with

performance specification 12A and quality assurance

procedure 5, as well as the requirements specified in §

60.58b(p) and (q). A facility may substitute continuous

mercury monitoring for the minimum sorbent flow rate, if

activated carbon sorbent injection is used solely for

compliance with the mercury emission limit.

(k) To demonstrate continuous compliance with the

nitrogen oxides emissions limit, a facility may substitute

use of a CEMS for the nitrogen oxides annual performance

test to demonstrate compliance with the nitrogen oxides

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emissions limits and monitoring the charge rate, secondary

chamber temperature, and reagent flow for selective

noncatalytic reduction, if applicable.

(1) Install, calibrate, maintain, and operate a CEMS

for measuring nitrogen oxides emissions discharged to the

atmosphere and record the output of the system. The

requirements under performance specification 2 of appendix

B of this part, the quality assurance procedure one of

appendix F of this part and the procedures under §60.13

must be followed for installation, evaluation, and

operation of the CEMS.

(2) Following the date that the initial performance

test for nitrogen oxides is completed or is required to be

completed under §60.2125, compliance with the emission

limit for nitrogen oxides required under §60.52b(d) must be

determined based on the 30-day rolling average of the

hourly emission concentrations using CEMS outlet data. The

1-hour arithmetic averages must be expressed in parts per

million by volume corrected to 7 percent oxygen (dry basis)

and used to calculate the 30-day rolling average

concentrations. CEMS data during startup and shutdown, as


oxygen, and are measured at stack oxygen content. The 1-

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hour arithmetic averages must be calculated using the data

points required under § 60.13(e)(2).

(l) * * *


for measuring sulfur dioxide emissions discharged to the



B of this part, the quality assurance requirements of

procedure one of appendix F of this part and procedures

under §60.13 must be followed for installation, evaluation,

and operation of the CEMS.


test for sulfur dioxide is completed or is required to be

completed under § 60.2125, compliance with the sulfur

dioxide emission limit may be determined based on the 30-

day rolling average of the hourly arithmetic average

emission concentrations using CEMS outlet data. The 1-hour

arithmetic averages must be expressed in parts per million

corrected to 7 percent oxygen (dry basis) and used to

calculate the 30-day rolling average emission




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points required under §60.13(e)(2).

(m) For energy recovery units over 10 MMBtu/hr but

less than 250 MMBtu/hr annual average heat input rates that

do not use a wet scrubber, fabric filter with bag leak

detection system, or particulate matter CEMS, you must

install, operate, certify, and maintain a continuous

opacity monitoring system according to the procedures in

paragraphs (m)(1) through (5) of this section by the

compliance date specified in §60.2105. Energy recovery

units that use a CEMS to demonstrate initial and continuing

compliance according to the procedures in §60.2165(n) are

not required to install a continuous opacity monitoring

system and must perform the annual performance tests for

the opacity consistent with § 60.2145(f).

* * * * *

(n) For coal and liquid/gas energy recovery units,

incinerators, and small remote incinerators, an owner or

operator may elect to install, calibrate, maintain, and

operate a CEMS for monitoring particulate matter emissions


system. The owner or operator of an affected facility who

continuously monitors particulate matter emissions instead

of conducting performance testing using EPA Method 5 at 40

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CFR part 60, appendix A-3 or, as applicable, monitor with a

particulate matter CPMS according to paragraph (r) of this

section, must install, calibrate, maintain, and operate a

CEMS and must comply with the requirements specified in

paragraphs (n)(1) through (13) of this section.

* * * * *

(6) The owner or operator of an affected facility

must conduct an initial performance test for particulate

matter emissions as required under § 60.2125. Compliance

with the particulate matter emission limit, if PM CEMS are

elected for demonstrating compliance, must be determined by

using the CEMS specified in this paragraph (n) to measure

particulate matter. You must calculate a 30-day rolling

average of 1-hour arithmetic average emission

concentrations, including CEMS data during startup and

shutdown, as defined in this subpart, using Equation 19-19

in section 12.4.1 of EPA Reference Method 19 at 40 CFR part

60, appendix A-7.

(7) Compliance with the particulate matter emission

limit must be determined based on the 30-day rolling

average calculated using Equation 19-19 in section 12.4.1

of EPA Reference Method 19 at 40 CFR part 60, appendix A-7

from the 1-hour arithmetic average CEMS outlet data.

* * * * *

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(9) The 1-hour arithmetic averages required under

paragraph (n)(7) of this section must be expressed in

milligrams per dry standard cubic meter corrected to 7

percent oxygen (dry basis) and must be used to calculate

the 30-day rolling average emission concentrations. CEMS


subpart, are not corrected to 7 percent oxygen, and are

measured at stack oxygen content. The 1-hour arithmetic

averages must be calculated using the data points required

under § 60.13(e)(2).

(10) All valid CEMS data must be used in calculating

average emission concentrations even if the minimum CEMS

data requirements of paragraph (n)(8) of this section are

not met.

(11) The CEMS must be operated according to

performance specification 11 in appendix B of this part.

(12) During each relative accuracy test run of the

CEMS required by performance specification 11 in appendix B

of this part, particulate matter and oxygen (or carbon

dioxide) data must be collected concurrently (or within a

30- to 60-minute period) by both the CEMS and the following

test methods.

* * * * *

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(ii) For oxygen (or carbon dioxide), EPA Reference

Method 3A or 3B, as applicable, must be used.

* * * * *

(o) * * *


for measuring carbon monoxide emissions discharged to the


requirements under performance specification 4B of appendix

B of this part, the quality assurance procedure 1 of

appendix F of this part and the procedures under § 60.13




test for carbon monoxide is completed or is required to be

completed under § 60.2140, compliance with the carbon

monoxide emission limit may be determined based on the 30-


emission concentrations, including CEMS data during startup

and shutdown as defined in this subpart, using CEMS outlet

data. Except for CEMS data during startup and shutdown, as

defined in this subpart, the 1-hour arithmetic averages

must be expressed in parts per million corrected to 7

percent oxygen (dry basis) and used to calculate the 30-day

rolling average emission concentrations. CEMS data during

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startup and shutdown, as defined in this subpart, are not

corrected to 7 percent oxygen, and are measured at stack

oxygen content. The 1-hour arithmetic averages must be

calculated using the data points required under §

60.13(e)(2).

* * * * *

(q) For energy recovery units with a design heat

input capacity of 100 MMBtu per hour or greater that do not

use a carbon monoxide CEMS, you must install, operate, and


according to the procedures in paragraphs (q)(1) through



the initial performance test date specified in § 60.2675.


compliance with paragraph (q)(3) of this section at all

times.



limit for oxygen according to paragraph (q)(4) or this

section is not below the lowest hourly average oxygen

concentration measured during the most recent CO

performance test.

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of this part.

(r) For energy recovery units with annual average heat




as specified in paragraphs (r)(1) through (8) of this

section. If you elect to use a particulate matter CEMS as

specified in paragraph (n) of this section, you are not

required to use a PM CPMS to monitor particulate matter

emissions. For other energy recovery units, you may elect

to use PM CPMS operated in accordance with this section. PM



power, PM scrubber pressure)




60.2145(l) and (r)(1)(i) through (iii) of this section.



scintillation, beta attenuation, or mass accumulation

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detection of PM in the exhaust gas or representative

sample. The reportable measurement output from the PM CPMS

must be expressed as milliamps.











performance test according to the procedures specified in §

60.2110.










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(r)(1)(ii) of this section, except for periods of










except:













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report);



subpart.









limit, you must:










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subpart.

(s) If you use a dry scrubber to comply with the

emission limits of this subpart, you must monitor the

injection rate of each sorbent and maintain the 3-hour

block averages at or above the operating limits established

during the hydrogen chloride performance test.



§ 60.2170 Is there a minimum amount of monitoring data I

must obtain?

* * * * *

(b) You may not use data recorded during monitoring

system malfunctions or out-of-control periods, repairs

associated with monitoring system malfunctions or out-of-

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control periods, or required monitoring system quality

assurance or control activities in calculations used to

report emissions or operating levels. You must use all the

data collected during all other periods in assessing the

operation of the control device and associated control

system.

* * * * *


a. Revising the introductory text.

b. Revising paragraph (b)(5).

c. Revising paragraph (e).

d. Revising paragraph (p)(4).

e. Adding paragraphs (p)(8) and (p)(9).

f. Revising paragraphs (v) and (w).

g. Adding paragraph (x).


§ 60.2175 What records must I keep?

You must maintain the items (as applicable) as

specified in paragraphs (a), (b), and (e) through (x) of

this section for a period of at least 5 years:

* * * * *

(b) * * *

(5) For affected CISWI units that establish operating

limits for controls other than wet scrubbers under §

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60.2110(d) through (g) or § 60.2115, you must maintain data

collected for all operating parameters used to determine

compliance with the operating limits. For energy recovery

units using activated carbon injection or a dry scrubber,

you must also maintain records of the load fraction and

corresponding sorbent injection rate records.

* * * * *

(e) Identification of calendar dates and times for

which data show a deviation from the operating limits in

table 2 of this subpart or a deviation from other operating

limits established under § 60.2110(d) through (g) or

§60.2115 with a description of the deviations, reasons for

such deviations, and a description of corrective actions

taken.

* * * * *

(p) * * *

(4) All 1-hour average concentrations of carbon

monoxide emissions. You must indicate which data are CEMS

data during startup and shutdown.

* * * * *

(8) All 1-hour average percent oxygen concentrations.

(9) All 1-hour average PM CPMS readings or particulate

matter CEMS outputs.

* * * * *

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(v) For operating units that combust non-hazardous

secondary materials that have been determined not to be

solid waste pursuant to § 241.3(b)(1) of this chapter, you

must keep a record which documents how the secondary

material meets each of the legitimacy criteria under §

241.3(d)(1). If you combust a fuel that has been processed

from a discarded non-hazardous secondary material pursuant

to § 241.3(b)(4) of this chapter, you must keep records as

to how the operations that produced the fuel satisfies the

definition of processing in § 241.2 and each of the

legitimacy criteria of § 241.3(d)(1) of this chapter. If

the fuel received a non-waste determination pursuant to the

petition process submitted under § 241.3(c) of this

chapter, you must keep a record that documents how the fuel

satisfies the requirements of the petition process. For

operating units that combust non-hazardous secondary

materials as fuel per § 241.4, you must keep records

documenting that the material is a listed non-waste under §

241.4(a).

(w) Records of the criteria used to establish that the

unit qualifies as a small power production facility under

section 3(17)(C) of the Federal Power Act (16 U.S.C.

796(17)(C)) and that the waste material the unit is

proposed to burn is homogeneous.

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(x) Records of the criteria used to establish that the

unit qualifies as a cogeneration facility under section

3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B))

and that the waste material the unit is proposed to burn is

homogeneous.


(m) introductory text and paragraph (n) to read as follows:

§ 60.2210 What information must I include in my annual

report?

* * * * *

(m) If there were periods during which the continuous

monitoring system, including the CEMS, was out of control

as specified in paragraph (o) of this section, the annual

report must contain the following information for each

deviation from an emission or operating limitation

occurring for a CISWI unit for which you are using a

continuous monitoring system to comply with the emission

and operating limitations in this subpart.

* * * * *

(n) If there were periods during which the continuous

monitoring system, including the CEMS, was not out of

control as specified in paragraph (o) of this section, a

statement that there were not periods during which the

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continuous monitoring system was out of control during the

reporting period.

* * * * *


§ 60.2235 In what form can I submit my reports?

(a) Submit initial, annual, and deviation reports

electronically or in paper format, postmarked on or before

the submittal due dates.

(b) Submit results of performance tests and CEMS

performance evaluation tests as follows.

(1) Within 60 days after the date of completing each

performance test as required by this subpart, you must

submit the results of the performance tests required by

this subpart to EPA’s WebFIRE database by using the

Compliance and Emissions Data Reporting Interface (CEDRI)

that is accessed through EPA’s Central Data Exchange

(CDX)(www.epa.gov/cdx). Performance test data must be

submitted in the file format generated through use of EPA’s

Electronic Reporting Tool (ERT) (see

http://www.epa.gov/ttn/chief/ert/index.html). Only data

collected using test methods on the ERT website are subject

to this requirement for submitting reports electronically

to WebFIRE. Owners or operators who claim that some of the

information being submitted for performance tests is

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confidential business information (CBI) must submit a

complete ERT file including information claimed to be CBI

on a compact disk, flash drive, or other commonly used

electronic storage media to EPA. The electronic media must

be clearly marked as CBI and mailed to U.S. EPA/OAPQS/CORE

CBI Office, Attention: WebFIRE Administrator, MD C404-02,

4930 Old Page Rd., Durham, NC 27703. The same ERT file with

the CBI omitted must be submitted to EPA via CDX as

described earlier in this paragraph. At the discretion of

the delegated authority, you must also submit these

reports, including the confidential business information,

to the delegated authority in the format specified by the

delegated authority. For any performance test conducted

using test methods that are not listed on the ERT website,

the owner or operator shall submit the results of the

performance test in paper submissions to the Administrator.


CEMS performance evaluation test, as defined in this

subpart and required by this subpart, you must submit the

relative accuracy test audit (RATA) data electronically

into EPA’s Central Data Exchange by using CEDRI as

mentioned in paragraph (b)(1) of this section. Only RATA

pollutants that can be documented with the ERT (as listed

on the ERT website) are subject to this requirement. For

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any performance evaluations with no corresponding RATA

pollutants listed on the ERT website, the owner or operator

shall submit the results of the performance evaluation in

paper submissions to the Administrator.


a. Adding in alphabetical order definitions for “30-

day rolling average,” “Annual heat input,” “Average annual

heat input rate,” “CEMS data during startup and shutdown,”

“Contained gaseous material,” “Continuous emission

monitoring system,” “Dry scrubber,” “Foundry sand thermal

reclamation unit,” “Load fraction,” “Municipal solid waste

or municipal type solid waste,” “Oxygen analyzer system,”

“Oxygen trim system,” “Responsible official,” and “Solid

waste.”

b. Revising definitions for “Chemical recovery unit,”

“Commercial and industrial solid waste incineration (CISWI)

unit,” “Continuous monitoring system (CMS),” “Cyclonic burn

barrel,” “Energy recovery unit,” “Energy recovery unit

designed to burn biomass (Biomass),” “Incinerator,”

“Modification or modified CISWI unit,” “Process change,”

“Raw mill,” “Small, remote incinerator,” “Soil treatment

unit,” “Solid waste incineration unit,” “Space heater,” and

“Waste-burning kiln.”

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c. Removing the definition for “Homogeneous wastes”

and “Cyclonic barrel burner.”


§ 60.2265 What definitions must I know?

* * * * *

30-day rolling average means the arithmetic mean of

the previous 720 hours of valid operating data. Valid data

excludes periods when this unit is not operating. The 720

hours should be consecutive, but not necessarily continuous

if operations are intermittent.

* * * * *

Annual heat input means the heat input for the 12

months preceding the compliance demonstration.

* * * * *

Average annual heat input rate means annual heat input

divided by the hours of operation for the 12 months

preceding the compliance demonstration.

* * * * *

CEMS data during startup and shutdown means the

following:

(1) For incinerators, small remote incinerators, and

energy recovery units: CEMS data collected during the first

hours of a CISWI unit startup from a cold start until waste

is fed to the unit and the hours of operation following the

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cessation of waste material being fed to the CISWI unit

during a unit shutdown. For each startup event, the length

of time that CEMS data may be claimed as being CEMS data

during startup must be 48 operating hours or less. For each

shutdown event, the length of time that CEMS data may be

claimed as being CEMS data during shutdown must be 24

operating hours or less.

(2) For waste-burning kilns: CEMS data collected

during the periods of kiln operation that do not include

normal operations. Startup begins when the kiln’s induced

fan is turned on and continues until continuous feed is

introduced into the kiln, at which time the kiln is in

normal operating mode. Shutdown begins when feed to the

kiln is halted.

Chemical recovery unit means combustion units burning

materials to recover chemical constituents or to produce

chemical compounds where there is an existing commercial

market for such recovered chemical constituents or

compounds. The following seven types of units are

considered chemical recovery units:

(1) Units burning only pulping liquors (i.e., black

liquor) that are reclaimed in a pulping liquor recovery

process and reused in the pulping process.

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(2) Units burning only spent sulfuric acid used to

produce virgin sulfuric acid.

(3) Units burning only wood or coal feedstock for the

production of charcoal.

(4) Units burning only manufacturing byproduct

streams/residue containing catalyst metals that are

reclaimed and reused as catalysts or used to produce

commercial grade catalysts.

(5) Units burning only coke to produce purified carbon

monoxide that is used as an intermediate in the production

of other chemical compounds.

(6) Units burning only hydrocarbon liquids or solids

to produce hydrogen, carbon monoxide, synthesis gas, or

other gases for use in other manufacturing processes.

(7) Units burning only photographic film to recover

silver.

* * * * *

Commercial and industrial solid waste incineration

(CISWI) unit means any distinct operating unit of any

commercial or industrial facility that combusts, or has

combusted in the preceding 6 months, any solid waste as

that term is defined in 40 CFR part 241. If the operating

unit burns materials other than traditional fuels as

defined in §241.2 that have been discarded, and you do not

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keep and produce records as required by §60.2175(v), the

operating unit is a CISWI unit. While not all CISWI units

will include all of the following components, a CISWI unit

includes, but is not limited to, the solid waste feed

system, grate system, flue gas system, waste heat recovery

equipment, if any, and bottom ash system. The CISWI unit

does not include air pollution control equipment or the

stack. The CISWI unit boundary starts at the solid waste

hopper (if applicable) and extends through two areas: The

combustion unit flue gas system, which ends immediately

after the last combustion chamber or after the waste heat

recovery equipment, if any; and the combustion unit bottom

ash system, which ends at the truck loading station or

similar equipment that transfers the ash to final disposal.

The CISWI unit includes all ash handling systems connected

to the bottom ash handling system.

Contained gaseous material means gases that are in a

container when that container is combusted.

Continuous emission monitoring system (CEMS) means the

total equipment that may be required to meet the data

acquisition and availability requirements of this subpart,

used to sample, condition (if applicable), analyze, and

provide a record of emissions.

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Continuous monitoring system (CMS) means the total

equipment, required under the emission monitoring sections

in applicable subparts, used to sample and condition (if

applicable), to analyze, and to provide a permanent record

of emissions or process parameters. A particulate matter

continuous parameter monitoring system (PM CPMS) is a type

of CMS.

Cyclonic burn barrel means a combustion device for

waste materials that is attached to a 55 gallon, open-head

drum. The device consists of a lid, which fits onto and

encloses the drum, and a blower that forces combustion air

into the drum in a cyclonic manner to enhance the mixing of

waste material and air. A cyclonic burn barrel is not an

incinerator, a waste-burning kiln, an energy recovery unit

or a small, remote incinerator under this subpart.

* * * * *

Dry scrubber means an add-on air pollution control

system that injects dry alkaline sorbent (dry injection) or

sprays an alkaline sorbent (spray dryer) to react with and

neutralize acid gas in the exhaust stream forming a dry

powder material. Sorbent injection systems in fluidized bed

boilers and process heaters are included in this

definition. A dry scrubber is a dry control system.

* * * * *

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Energy recovery unit means a combustion unit

combusting solid waste (as that term is defined by the

Administrator in 40 CFR 241) for energy recovery. Energy

recovery units include units that would be considered

boilers and process heaters if they did not combust solid

waste.

Energy recovery unit designed to burn biomass

(Biomass) means an energy recovery unit that burns solid

waste, biomass, and non-coal solid materials but less than

10 percent coal, on a heat input basis on an annual

average, either alone or in combination with liquid waste,

liquid fuel or gaseous fuels.

* * * * *

Foundry sand thermal reclamation unit means a type of

part reclamation unit that removes coatings that are on

foundry sand. A foundry sand thermal reclamation unit is

not an incinerator, a waste-burning kiln, an energy

recovery unit or a small, remote incinerator under this

subpart.

Incinerator means any furnace used in the process of


Administrator in 40 CFR 241) for the purpose of reducing

the volume of the waste by removing combustible matter.

Incinerator designs include single chamber and two-chamber.

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* * * * *

Load fraction means the actual heat input of an energy

recovery unit divided by heat input during the performance

test that established the minimum sorbent injection rate or

minimum activated carbon injection rate, expressed as a

fraction (e.g., for 50 percent load the load fraction is

0.5).

* * * * *

Modification or modified CISWI unit means a CISWI unit

that has been changed later than [THE DATE SIX MONTHS AFTER

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] and

that meets one of two criteria:

(1) The cumulative cost of the changes over the life

of the unit exceeds 50 percent of the original cost of

building and installing the CISWI unit (not including the

cost of land) updated to current costs (current dollars).

To determine what systems are within the boundary of the

CISWI unit used to calculate these costs, see the

definition of CISWI unit.

(2) Any physical change in the CISWI unit or change in

the method of operating it that increases the amount of any

air pollutant emitted for which section 129 or section 111

of the Clean Air Act has established standards.

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Municipal solid waste or municipal-type solid waste

means household, commercial/retail, or institutional waste.

Household waste includes material discarded by residential

dwellings, hotels, motels, and other similar permanent or

temporary housing. Commercial/retail waste includes

material discarded by stores, offices, restaurants,

warehouses, nonmanufacturing activities at industrial

facilities, and other similar establishments or facilities.

Institutional waste includes materials discarded by

schools, by hospitals (nonmedical), by nonmanufacturing

activities at prisons and government facilities, and other

similar establishments or facilities. Household,

commercial/retail, and institutional waste does include

yard waste and refuse-derived fuel. Household,

commercial/retail, and institutional waste does not include

used oil; sewage sludge; wood pallets; construction,

renovation, and demolition wastes (which include railroad

ties and telephone poles); clean wood; industrial process

or manufacturing wastes; medical waste; or motor vehicles

(including motor vehicle parts or vehicle fluff).

* * * * *

Oxygen analyzer system means all equipment required to

determine the oxygen content of a gas stream and used to

monitor oxygen in the boiler or process heater flue gas,

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boiler or process heater, firebox, or other appropriate

location. This definition includes oxygen trim systems and

certified oxygen CEMS. The source owner or operator is

responsible to install, calibrate, maintain, and operate

the oxygen analyzer system in accordance with the

manufacturer’s recommendations.

Oxygen trim system means a system of monitors that is

used to maintain excess air at the desired level in a

combustion device. A typical system consists of a flue gas

oxygen and/or carbon monoxide monitor that automatically

provides a feedback signal to the combustion air

controller.

* * * * *

Process change means any of the following physical or

operational changes:

(1) A physical change (maintenance activities

excluded) to the CISWI unit which may increase the emission

rate of any air pollutant to which a standard applies;

(2) An operational change to the CISWI unit where a

new type of non-hazardous secondary material is being

combusted;


excluded) to the air pollution control devices used to

comply with the emission limits for the CISWI unit (e.g.,

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replacing an electrostatic precipitator with a fabric

filter);

(4) An operational change to the air pollution control

devices used to comply with the emission limits for the

affected CISWI unit (e.g., change in the sorbent injection

rate used for activated carbon injection).

* * * * *

Raw mill means a ball or tube mill, vertical roller

mill or other size reduction equipment, that is not part of

an in-line kiln/raw mill, used to grind feed to the

appropriate size. Moisture may be added or removed from the

feed during the grinding operation. If the raw mill is used

to remove moisture from feed materials, it is also, by

definition, a raw material dryer. The raw mill also

includes the air separator associated with the raw mill.

* * * * *

Responsible official means one of the following:

(1) For a corporation: a president, secretary,

treasurer, or vice-president of the corporation in charge

of a principal business function, or any other person who

performs similar policy or decision-making functions for

the corporation, or a duly authorized representative of

such person if the representative is responsible for the

overall operation of one or more manufacturing, production,

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or operating facilities applying for or subject to a permit

and either:

(i) The facilities employ more than 250 persons or

have gross annual sales or expenditures exceeding $25

million (in second quarter 1980 dollars); or

(ii) The delegation of authority to such

representatives is approved in advance by the permitting

authority;

(2) For a partnership or sole proprietorship: a

general partner or the proprietor, respectively;

(3) For a municipality, State, Federal, or other

public agency: Either a principal executive officer or

ranking elected official. For the purposes of this part, a

principal executive officer of a Federal agency includes

the chief executive officer having responsibility for the

overall operations of a principal geographic unit of the

agency (e.g., a Regional Administrator of EPA); or

(4) For affected facilities:

(i) The designated representative in so far as

actions, standards, requirements, or prohibitions under

Title IV of the Clean Air Act or the regulations

promulgated thereunder are concerned; or

(ii) The designated representative for any other

purposes under part 60.

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* * * * *

Small, remote incinerator means an incinerator that

combusts solid waste (as that term is defined by the

Administrator in 40 CFR 241) and combusts 3 tons per day or

less solid waste and is more than 25 miles driving distance

to the nearest municipal solid waste landfill.

Soil treatment unit means a unit that thermally treats

petroleum–contaminated soils for the sole purpose of site

remediation. A soil treatment unit may be direct-fired or

indirect fired. A soil treatment unit is not an



Solid waste means the term solid waste as defined in

40 CFR 241.2.

Solid waste incineration unit means a distinct

operating unit of any facility which combusts any solid

waste (as that term is defined by the Administrator in 40

CFR part 241) material from commercial or industrial

establishments or the general public (including single and

multiple residences, hotels and motels). Such term does not

include incinerators or other units required to have a

permit under section 3005 of the Solid Waste Disposal Act.

The term "solid waste incineration unit" does not include:

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(1) Materials recovery facilities (including primary

or secondary smelters) which combust waste for the primary

purpose of recovering metals;

(2) Qualifying small power production facilities, as

defined in section 3(17)(C) of the Federal Power Act (16

U.S.C. 769(17)(C)), or qualifying cogeneration facilities,

as defined in section 3(18)(B) of the Federal Power Act (16

U.S.C. 796(18)(B)), which burn homogeneous waste (such as

units which burn tires or used oil, but not including

refuse-derived fuel) for the production of electric energy

or in the case of qualifying cogeneration facilities which

burn homogeneous waste for the production of electric

energy and steam or forms of useful energy (such as heat)

which are used for industrial, commercial, heating or

cooling purposes; or

(3) Air curtain incinerators provided that such

incinerators only burn wood wastes, yard wastes, and clean

lumber and that such air curtain incinerators comply with

opacity limitations to be established by the Administrator

by rule.

Space heater means a unit that meets the requirements

of 40 CFR 279.23. A space heater is not an incinerator, a

waste-burning kiln, an energy recovery unit or a small,

remote incinerator under this subpart.

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* * * * *

Waste-burning kiln means a kiln that is heated, in

whole or in part, by combusting solid waste (as that term

is defined by the Administrator in 40 CFR part 241).

Secondary materials used in Portland cement kilns shall not

be deemed to be combusted unless they are introduced into

the flame zone in the hot end of the kiln or mixed with the

precalciner fuel.

* * * * *

21. Table 1 to subpart CCCC of part 60 is amended by:

a. Revising the table heading.

b. Revising the entry for “Carbon monoxide”.

c. Revising the entry for “Dioxin/Furan (toxic

equivalency basis)”.

d. Revising the entry for “Hydrogen Chloride”.

e. Revising the entry for “Nitrogen Oxides”.

f. Revising the entry for “Sulfur Dioxide”.

The revisions read as follows:

Table 1 to Subpart CCCC of Part 60—Emission Limitations for CISWI Units for Which Construction Is Commenced After November 30, 1999, but no later than June 4, 2010, or for Which Modification or Reconstruction Is Commenced on or After June 1, 2001, but no later than August 7, 2013.

For the air pollutant

You must meet this emission

limitationa Using this averaging time

And determining compliance using this method

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* * * * * * *

Carbon monoxide

157 parts per million by dry volume

3-run average (1 hour minimum sample time per run)

Performance test (Method 10 at 40 CFR part 60, appendix A-4).

Dioxin/Furan (toxic equivalency basis)

0.41 nanograms per dry standard cubic meter

3-run average (collect a minimum volume of 4 dry standard cubic meters per run)

Performance test (Method 23 of appendix A-7 of this part).

Hydrogen chloride


3-run average (For Method 26, collect a minimum volume of 120 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run)

Performance test (Method 26 or 26A at 40 CFR part 60, appendix A-8).

* * * * * * *

Nitrogen Oxides


3-run average (for Method 7E, 1 hour minimum sample time per run)

Performance test (Method 7 or 7E at 40 CFR part 60, appendix A-4).

* * * * * * *

Sulfur Dioxide

20 parts per million

3-run average (For Method 6, collect a minimum

Performance test

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by dry volume

volume of 20 liters per run. For Method 6C, collect sample for a minimum duration of 1 hour per run)

(Method 6 or 6C at 40 CFR part 60, appendix A-4).

a All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. b Incorporated by reference, see § 60.17. * * * * *

22. Table 2 to subpart CCCC of part 60 is amended by

revising footnote a to read as follows:

Table 2 to Subpart CCCC of Part 60—Operating Limits for Wet Scrubbers

* * * * *

a Calculated each hour as the average of the previous 3 operating hours.



b. Revising the entry for “Carbon Monoxide”.

c. Revising the entry for “Dioxin/furan (Total Mass

Basis)”.

d. Revising the entry for “Hydrogen chloride”.

e. Revising the entry for “Lead”.

f. Revising the entry for “Mercury”.

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g. Revising the entry for “Nitrogen Oxides”.

h. Revising the entry for “Sulfur dioxide”.

i. Adding footnote c.

The revisions and addition read as follows:

Table 5 to Subpart CCCC of Part 60—Emission Limitations for Incinerators That Commenced Construction After June 4, 2010, Or That Commenced Reconstruction or Modification After August 7, 2013



limitationa Using this

averaging time

And determining compliance using

this method

* * * * * * *

Carbon monoxide




Dioxin/furan (Total Mass Basis)

0.58 nanograms per dry standard cubic

meterc



* * * * * * *

Hydrogen chloride

0.091 parts per million by dry volume

3-run average (For Method 26, collect a minimum volume of 360 liters per run. For Method 26A, collect a minimum volume of 3 dry standard cubic meters per run)


Lead 0.015 milligrams per dry standard

cubic meterc


Performance test (Method 29 of appendix A-8 at 40 CFR part 60). Use ICPMS for the analytical finish.

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averaging time


this method

Mercury 0.00084 milligrams per dry standard

cubic meterc

3-run average (collect enough volume to meet a detection limit data quality objective of 0.03 ug/dry standard cubic meter)

Performance test (Method 29 or 30B at 40 CFR part 60,appendix A-8) or ASTM D6784-02(Reapproved

2008)b.

Nitrogen Oxides

23 parts per million dry volume

3-run average (for Method 7E,1 hour minimum sample time per run)


* * * * * * *

Sulfur dioxide



Performance test (Method 6 or 6C at 40 CFR part 60, appendix A-4).

* * * * * * *

a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. * * * * *

c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to §60.2155 if all of the other provisions of § 60.2155 are met. For all other pollutants that do not contain a footnote “c”, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing.


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b. Revising the entry for “Cadmium”.

c. Revising the entry for “Carbon monoxide”.

d. Revising the entry for “Dioxins/furans (Total Mass

Basis)”.

e. Revising the entry for “Dioxins/furans (toxic

equivalency basis)”.

f. Revising the entry for “Hydrogen chloride”.

g. Revising the entry for “Lead”.

h. Revising the entry for “Mercury”.

i. Revising the entry for “Oxides of nitrogen”.

j. Revising the entry for “Particulate matter

(filterable)”.

k. Revising the entry for “Sulfur dioxide”.

l. Adding footnote c.


Table 6 to Subpart CCCC of Part 60—Emission Limitations for Energy Recovery Units That Commenced Construction After June 4, 2010, Or That Commenced Reconstruction or Modification After August 7, 2013

You must meet this

emission limitationa

For the air pollutant Liquid/Gas Solids

Using this averaging

time

And determining compliance using this

method

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You must meet this




time


method

Biomass - 0.0014 milligrams per dry standard

cubic meterc

Cadmium 0.023 milligrams per dry standard cubic meter

Coal - 0.0095 milligrams per dry standard cubic meter


Performance test (Method 29 at 40 CFR part 60, appendix A-8). Use ICPMS for the analytical finish.

Biomass – 240 parts per million dry volume

Carbon monoxide


Coal – 95 parts per million dry volume



Biomass - 0.52 nanograms per dry standard

cubic meterc

Dioxin/furans (Total Mass Basis)

No Total Mass Basis limit, must meet the toxic equivalency basis limit below

Coal – 5.1 nanograms per dry standard

cubic meterc

3-run average (collect a minimum volume of 4 dry standard cubic meters)


Dioxins/ furans (toxic equivalency basis)

0.093 nanograms per dry standard

cubic meterc

Biomass - 0.076 nanograms per dry standard

cubic meterc

3-run average (collect a minimum volume of 4 dry

Performance test (Method 23 of appendix A-7 of this part).

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You must meet this




time


method

Coal - 0.075 nanograms per dry standard

cubic meterc

standard cubic meters per run)

Biomass - 0.20 parts per million dry volume

Hydrogen chloride



3-run average (For Method 26, collect a minimum volume of 360 liters per run. For Method 26A, collect a minimum volume of 3 dry standard cubic meters per run)


Biomass -0.014 milligrams per dry standard

cubic meterc

Lead 0.096 milligrams per dry standard cubic meter




Mercury 0.00056 milligrams per dry standard

cubic meterc

Biomass - 0.0022 milligrams per dry standard cubic meter

3-run average (collect enough volume to meet an

Performance test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784-

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You must meet this




time


method


in-stack detection limit data quality objective of 0.03 ug/dscm)

02 (Reapproved 2008)b.


Oxides of nitrogen






Particulate matter (filterable)

110 milligrams per dry standard cubic meter

Coal - 160 milligrams per dry standard cubic meter

3-run average (collect a minimum volume of 1 dry standard cubic meter per run)

Performance test (Method 5 or 29 at 40 CFR part 60, appendix A-3 or appendix A-8) if the unit has an annual average heat input rate less than 250 MMBtu/hr; or PM CPMS (as specified in §60.2145(x)) if the unit has an annual average heat input rate equal to or greater than 250 MMBtu/hr.

Sulfur dioxide


Biomass – 7.3 parts per million dry volume

3-run average (for Method 6,

Performance test (Method 6 or 6C at 40 CFR part 60,

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You must meet this




time


method


collect a minimum of 60 liters, for Method 6C,1 hour minimum sample time per run)

appendix A-4).

a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. * * * * *


25. Table 7 to Subpart CCCC of part 60 is revised to

read as follows:

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Table 7 to Subpart CCCC of Part 60—Emission Limitations for Waste-burning Kilns That Commenced Construction After June 4, 2010, or Reconstruction or Modification After August 7, 2013



limitationa

Using this averaging time


Cadmium 0.0014 milligrams per dry standard

cubic meterb



Carbon monoxide 90 (long kilns) / 190 (preheater / precalciner) parts per million dry volume



Dioxins/furans (total mass basis)


meterb



Dioxins/furans (toxic equivalency basis)


meterb



Hydrogen chloride

3.0 parts per million dry

volumeb

3-run average (1 hour minimum sample time per run) or 30-day rolling average if HCl CEMS are used

Performance test (Method 321 at 40 CFR part 63, appendix A) or HCl CEMS if a wet scrubber or dry scrubber is not used.

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limitationa

Using this averaging time



cubic meterb



Mercury 0.0037 milligrams per dry standard cubic meter

30-day rolling average

Mercury CEMS or sorbent trap monitoring system (performance specification 12A or 12B, respectively, of appendix B of this part.)

Oxides of nitrogen



NOx CEMS (performance specification 2 of appendix B and procedure 1 of appendix F of this part).


2.2 milligrams per dry standard cubic meter


PM CPMS (as specified in §60.2145(x)).

Sulfur dioxide 28 parts per million dry volume


Sulfur dioxide CEMS (performance specification 2 of appendix B and procedure 1 of appendix F of this part).

a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit.

b If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. For all other pollutants

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that do not contain a footnote “b”, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing.

26. Table 8 to Subpart CCCC of part 60 is revised to

read as follows:

Table 8 to Subpart CCCC of Part 60—Emission Limitations for Small, Remote Incinerators That Commenced Construction After June 4, 2010, Or That Commenced Reconstruction or Modification After [August 7, 2013




averaging time


this method




Carbon monoxide 13 parts per million dry volume




1,800 nanograms per dry standard

cubic meterb




31 nanograms per dry standard

cubic meterb



Fugitive ash Visible emissions for no more than 5 percent of the hourly observation period

Three 1-hour observation periods

Visible emissions test (Method 22 at 40 CFR part 60, appendix A-7).

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averaging time


this method

Hydrogen chloride








3-run average (For Method 29 and ASTM D6784-02

(Reapproved 2008)b,

collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum volume as specified in Method 30B at 40 CFR part 60, appendix A).

Performance test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784-02(Reapproved

2008)b.

Oxides of nitrogen







Performance test (Method 5 or 29 at 40 CFR part 60, appendix A-3 or appendix A-8).

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averaging time


this method

Sulfur dioxide 1.2 parts per million dry volume


Performance test (Method 6 or 6c at 40 CFR part 60, appendix A-4).

* * * * * * *

a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17.

Subpart DDDD—[Amended]


a. Revising paragraph (a).

b. Revising paragraph (c).

c. Revising paragraph (d).


§ 60.2505 Am I affected by this subpart?

(a) If you are the Administrator of an air quality

program in a state or United States protectorate with one

or more existing CISWI units that meet the criteria in

paragraphs (b) through (d) of this section, you must submit

a state plan to U.S. Environmental Protection Agency (EPA)

that implements the emission guidelines contained in this

subpart.

* * * * *

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(c) You must submit a state plan that meets the

requirements of this subpart and contains the more

stringent emission limit for the respective pollutant in

table 6 of this subpart or table 1 of subpart CCCC of this

part to EPA by [TRACK THE DATE 1 YEAR AFTER PUBLICATION OF

THE FINAL RULE IN THE FEDERAL REGISTER] for incinerators

that commenced construction after November 30, 1999, but no

later than June 4, 2010, or commenced modification or

reconstruction after June 1, 2001 but no later than August

7, 2013.

(d) You must submit a state plan to EPA that meets the

requirements of this subpart and contains the emission

limits in tables 7 through 9 of this subpart by February 7,

2014, for CISWI units other than incinerator units that

commenced construction on or before June 4, 2010, or

commenced modification or reconstruction after June 4, 2010

but no later than August 7, 2013.



§ 60.2525 What if my state plan is not approvable?

* * * * *

(b) If you do not submit an approvable state plan (or

a negative declaration letter) to EPA that meets the

requirements of this subpart and contains the emission

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limits in tables 6 through 9 of this subpart for CISWI

units that commenced construction on or before June 4,

2010, then EPA will develop a federal plan according to

§60.27 to implement the emission guidelines contained in

this subpart. Owners and operators of CISWI units not

covered by an approved state plan must comply with the

federal plan. The federal plan is an interim action and

will be automatically withdrawn when your state plan is

approved.

* * * * *


a. Revising paragraph (a) introductory text.

b. Revising paragraph (b) introductory text.

c. Revising paragraph (b)(1).


§ 60.2535 What compliance schedule must I include in my

state plan?

(a) For CISWI units in the incinerator subcategory

that commenced construction on or before November 30, 1999,

your state plan must include compliance schedules that

require CISWI units to achieve final compliance as

expeditiously as practicable after approval of the state

plan but not later than the earlier of the two dates

specified in paragraphs (a)(1) and (2) of this section.

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* * * * *

(b) For CISWI units in the incinerator subcategory

that commenced construction after November 30, 1999, but on

or before June 4, 2010, and for CISWI units in the small

remote incinerator, energy recovery unit, and waste-burning

kiln subcategories that commenced construction before June

4, 2010, your state plan must include compliance schedules

that require CISWI units to achieve final compliance as

expeditiously as practicable after approval of the state

plan but not later than the earlier of the two dates

specified in paragraphs (b)(1) and (2) of this section.

(1) February 7, 2018.

* * * * *


(c) to read as follows:

§ 60.2545 Does this subpart directly affect CISWI unit

owners and operators in my state?

* * * * *

(c) If you do not submit an approvable plan to

implement and enforce the guidelines contained in this

subpart by February 7, 2014, for CISWI units that commenced

construction on or before June 4, 2010, EPA will implement

and enforce a federal plan, as provided in § 60.2525, to

ensure that each unit within your state that commenced

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construction on or before June 4, 2010, reaches compliance

with all the provisions of this subpart by February 7,

2018.


(a)(1) to read as follows:

§ 60.2550 What CISWI units must I address in my state plan?

(a) * * *

(1) CISWI units in your state that commenced

construction on or before June 4, 2010, or commenced

modification or reconstruction after June 4, 2010 but no

later than August 7, 2013.

* * * * *



b. Revising paragraph (e)(3).

c. Adding paragraph (e)(4).

d. Revising paragraph (f)(3).

e. Adding paragraph (f)(4).

f. Revising paragraph (n).

g. Adding paragraph (o).


§ 60.2555 What combustion units are exempt from my state

plan?

* * * * *

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(c) Municipal waste combustion units. Incineration

units that are subject to subpart Ea of this part

(Standards of Performance for Municipal Waste Combustors);

subpart Eb of this part (Standards of Performance for Large

Municipal Waste Combustors); subpart Cb of this part

(Emission Guidelines and Compliance Time for Large

Municipal Combustors); AAAA of this part (Standards of

Performance for Small Municipal Waste Combustion Units); or

subpart BBBB of this part (Emission Guidelines for Small

Municipal Waste Combustion Units).

* * * * *

(e) * * *


notifying the Agency that the qualifying small power

production facility is combusting homogenous waste.

(4) You maintain the records specified in §60.2740(v).

(f) * * *


notifying the Agency that the qualifying cogeneration

facility is combusting homogenous waste.


60.2740(w).

* * * * *

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(n) Sewage sludge incineration units. Incineration

units combusting sewage sludge for the purpose of reducing

the volume of the sewage sludge by removing combustible

matter that are subject to subpart LLLL of this part

(Standards of Performance for Sewage Sludge Incineration

Units) or subpart MMMM of this part (Emission Guidelines

for Sewage Sludge Incineration Units).

(o) Other solid waste incineration units. Incineration

units that are subject to subpart EEEE of this part

(Standards of Performance for Other Solid Waste

Incineration Units) or subpart FFFF of this part (Emission

Guidelines and Compliance Times for Other Solid Waste

Incineration Units).



b. Revising paragraph (e).

c. Revising paragraph (f).

d. Redesignating paragraph (g) as paragraph (h).

e. Adding new paragraph (g).

f. Adding paragraph (i).


§ 60.2675 What operating limits must I meet and by when?

(a) * * *

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(2) Minimum pressure drop across the wet particulate

matter scrubber, which is calculated as the lowest 1-hour

average pressure drop across the wet scrubber measured

during the most recent performance test demonstrating

compliance with the particulate matter emission

limitations; or minimum amperage to the wet scrubber, which

is calculated as the lowest 1-hour average amperage to the

wet scrubber measured during the most recent performance

test demonstrating compliance with the particulate matter

emission limitations.

* * * * *

(e) If you use activated carbon sorbent injection to


sorbent flow rate during the performance testing. The

operating limit for the carbon sorbent injection is

calculated as the lowest 1-hour average sorbent flow rate

measured during the most recent performance test

demonstrating compliance with the mercury emission

limitations. For energy recovery units, when your unit

operates at lower loads, multiply your sorbent injection

rate by the load fraction, as defined in this subpart, to

determine the required injection rate (e.g., for 50 percent

load, multiply the injection rate operating limit by 0.5)

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(f) If you use selective noncatalytic reduction to


charge rate, the secondary chamber temperature (if

applicable to your CISWI unit), and the reagent flow rate

during the nitrogen oxides performance testing. The

operating limits for the selective noncatalytic reduction

are calculated as the highest 1-hour average charge rate,

lowest secondary chamber temperature, and lowest reagent

flow rate measured during the most recent performance test

demonstrating compliance with the nitrogen oxides emission

limitations.

(g) If you use a dry scrubber to comply with the

emission limitations, you must measure the injection rate

of each sorbent during the performance testing. The

operating limit for the injection rate of each sorbent is

calculated as the lowest 1-hour average injection rate of

each sorbent measured during the most recent performance

test demonstrating compliance with the hydrogen chloride

emission limitations. For energy recovery units, when your

unit operates at lower loads, multiply your sorbent

injection rate by the load fraction, as defined in this

subpart, to determine the required injection rate (e.g.,

for 50 percent load, multiply the injection rate operating

limit by 0.5).

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(h) If you do not use a wet scrubber, electrostatic

precipitator, or fabric filter to comply with the emission

limitations, and if you do not determine compliance with

your particulate matter emission limitation with a

particulate matter CEMS, you must maintain opacity to less

than or equal to ten percent opacity (1-hour block

average).

(i) If you use a PM CPMS to demonstrate compliance,

you must establish your PM CPMS operating limit and

determine compliance with it according to paragraphs (i)(1)




with the PM limit, record all hourly average output values

(milliamps) from the PM CPMS for the periods corresponding

to the test runs (e.g., three 1-hour average PM CPMS output

values for three 1-hour test runs).

(i) Your PM CPMS must provide a 4-20 milliamp output and

the establishment of its relationship to manual reference

method measurements must be determined in units of

milliamps.

(ii) Your PM CPMS operating range must be capable of

reading PM concentrations from zero to a level equivalent

to at least two times your allowable emission limit. If

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your PM CPMS is an auto-ranging instrument capable of

multiple scales, the primary range of the instrument must

be capable of reading PM concentration from zero to a level

equivalent to two times your allowable emission limit.

(iii) During the initial performance test or any such


with the PM limit, record and average all milliamp output

values from the PM CPMS for the periods corresponding to

the compliance test runs (e.g., average all your PM CPMS

output values for three corresponding 2-hour Method 5I test

runs).

(2) If the average of your three PM performance test

runs are below 75% of your PM emission limit, you must

calculate an operating limit by establishing a relationship

of PM CPMS signal to PM concentration using the PM CPMS

instrument zero, the average PM CPMS values corresponding

to the three compliance test runs, and the average PM

concentration from the Method 5 or performance test with

the procedures in (i)(1)through (5) of this section.

(i) Determine your instrument zero output with one of the

following procedures:

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(A) Zero point data for in-situ instruments should be

obtained by removing the instrument from the stack and

monitoring ambient air on a test bench.

(B) Zero point data for extractive instruments should be

obtained by removing the extractive probe from the stack

and drawing in clean ambient air.

(C) The zero point can also can be established obtained by

performing manual reference method measurements when the

flue gas is free of PM emissions or contains very low PM

concentrations (e.g., when your process is not operating,

but the fans are operating or your source is combusting

only natural gas) and plotting these with the compliance

data to find the zero intercept.

(D) If none of the steps in paragraphs (i)(2)(i) through

(iv) of this section are possible, you must use a zero

output value provided by the manufacturer.

(ii) Determine your PM CPMS instrument average in

milliamps, and the average of your corresponding three PM

compliance test runs, using equation 5.

(Eq. 5) Where:

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X1 = the PM CPMS data points for the three runs

constituting the performance test,

Y1 = the PM concentration value for the three runs

constituting the performance test, and

n = the number of data points.

(iii) With your instrument zero expressed in milliamps,

your three run average PM CPMS milliamp value, and your

three run average PM concentration from your three

compliance tests, determine a relationship of lb/Mmbtu per

milliamp with equation 6.

( )zXY−

=1

1 R

(Eq. 6)

Where: R = the relative mg/dscm per milliamp for your PM

CPMS,

Y1 = the three run average mg/dscm PM

concentration,

X1 = the three run average milliamp output from

you PM CPMS, and

z = the milliamp equivalent of your instrument

zero determined from (2)(i).

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(iv) Determine your source specific 30-day rolling average

operating limit using the mg/dscm per milliamp value from

Equation 6 in equation 7, below. This sets your operating

limit at the PM CPMS output value corresponding to 75% of

your emission limit.

(Eq. 7)

Where: Ol = the operating limit for your PM CPMS on a 30-

day rolling average, in milliamps.

L = your source emission limit expressed in

lb/Mmbtu,

z = your instrument zero in milliamps, determined

from (2)(a), and

R = the relative mg/dscm per milliamp for your PM

CPMS, from Equation 3.

(3) If the average of your three PM compliance test

runs is at or above 75% of your PM emission limit you must

determine your operating limit by averaging the PM CPMS

milliamp output corresponding to your three PM performance

test runs that demonstrate compliance with the emission

limit using equation 8 and you must submit all compliance

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test and PM CPMS data according to the reporting

requirements in paragraph (i)(5) of this section.

(Eq. 8) Where: X1 = the PM CPMS data points for all runs i,

n = the number of data points, and

Oh = your site specific operating limit, in

milliamps.

(4) To determine continuous compliance, you must

record the PM CPMS output data for all periods when the

process is operating and the PM CPMS is not out-of-control.

You must demonstrate continuous compliance by using all

quality-assured hourly average data collected by the PM

CPMS for all operating hours to calculate the arithmetic

average operating parameter in units of the operating limit

(e.g., milliamps, PM concentration, raw data signal) on a

30-day rolling average basis.

(5) For PM performance test reports used to set a PM

CPMS operating limit, the electronic submission of the test

report must also include the make and model of the PM CPMS

instrument, serial number of the instrument, analytical

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principle of the instrument (e.g., beta attenuation), span

of the instruments primary analytical range, milliamp value

equivalent to the instrument zero output, technique by

which this zero value was determined, and the average

milliamp signals corresponding to each PM compliance test

run.

34. Section 60.2680 is amended by revising the

section heading and paragraph (a) introductory text to read

as follows:

§ 60.2680 What if I do not use a wet scrubber, fabric

filter, activated carbon injection, selective noncatalytic


to comply with the emission limitations?

(a) If you use an air pollution control device other

than a wet scrubber, activated carbon injection, selective

noncatalytic reduction, fabric filter, an electrostatic

precipitator, or a dry scrubber or limit emissions in some

other manner, including mass balances, to comply with the

emission limitations under § 60.2670, you must petition the

EPA Administrator for specific operating limits to be

established during the initial performance test and

continuously monitored thereafter. You must submit the

petition at least sixty days before the performance test is

scheduled to begin. Your petition must include the five

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items listed in paragraphs (a)(1) through (5) of this

section.

* * * * *


§ 60.2685 Affirmative Defense for Violation of Emission

Standards During Malfunction.

In response to an action to enforce the standards set

forth in paragraph § 60.2670 you may assert an affirmative

defense to a claim for civil penalties for violations of

such standards that are caused by malfunction, as defined

at 40 CFR 60.2. Appropriate penalties may be assessed if

you fail to meet your burden of proving all of the

requirements in the affirmative defense. The affirmative

defense shall not be available for claims for injunctive

relief.

(a) Assertion of affirmative defense. To establish the

affirmative defense in any action to enforce such a

standard, you must timely meet the reporting requirements

in paragraph (b) of this section, and must prove by a

preponderance of evidence that:

(1) The violation:

(i) Was caused by a sudden, infrequent, and

unavoidable failure of air pollution control equipment,

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process equipment, or a process to operate in a normal or

usual manner; and

(ii) Could not have been prevented through careful

planning, proper design or better operation and maintenance

practices; and

(iii) Did not stem from any activity or event that

could have been foreseen and avoided, or planned for; and

(iv) Was not part of a recurring pattern indicative of

inadequate design, operation, or maintenance; and

(2) Repairs were made as expeditiously as possible

when a violation occurred. Off-shift and overtime labor

were used, to the extent practicable to make these repairs;

and

(3) The frequency, amount and duration of the

violation (including any bypass) were minimized to the

maximum extent practicable; and

(4) If the violation resulted from a bypass of control

equipment or a process, then the bypass was unavoidable to

prevent loss of life, personal injury, or severe property

damage; and

(5) All possible steps were taken to minimize the

impact of the violation on ambient air quality, the

environment, and human health; and

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(6) All emissions monitoring and control systems were

kept in operation if at all possible, consistent with

safety and good air pollution control practices; and

(7) All of the actions in response to the violation

were documented by properly signed, contemporaneous

operating logs; and

(8) At all times, the affected CISWI unit was operated

in a manner consistent with good practices for minimizing

emissions; and

(9) A written root cause analysis has been prepared,

the purpose of which is to determine, correct, and

eliminate the primary causes of the malfunction and the

violation resulting from the malfunction event at issue.

The analysis shall also specify, using best monitoring

methods and engineering judgment, the amount of any

emissions that were the result of the malfunction.

(b) Report. The owner or operator seeking to assert an

affirmative defense shall submit a written report to the

Administrator with all necessary supporting documentation,

that it has met the requirements set forth in paragraph (a)

of this section. This affirmative defense report shall be

included in the first periodic compliance, deviation report

or excess emission report otherwise required after the

initial occurrence of the violation of the relevant

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standard (which may be the end of any applicable averaging

period). If such compliance, deviation report or excess

emission report is due less than 45 days after the initial

occurrence of the violation, the affirmative defense report

may be included in the second compliance, deviation report

or excess emission report due after the initial occurrence

of the violation of the relevant standard.


a. Revising paragraph (g) introductory text.

b. Redesignating paragraphs (g)(2) and (3) as

paragraphs (g)(3) and (4), respectively.

c. Revising newly designated paragraphs (g)(3) and

(4).

d. Adding new paragraph (g)(2).

e. Adding paragraph (j).


§ 60.2690 How do I conduct the initial and annual

performance test?

* * * * *

(g) You must determine dioxins/furans toxic

equivalency by following the procedures in paragraphs

(g)(1) through (4) of this section.

* * * * *

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(3) For each dioxin/furan (tetra- through octa-

chlorinated) isomer measured in accordance with paragraph

(g)(1) and (2) of this section, multiply the isomer

concentration by its corresponding toxic equivalency factor

specified in table 4 of this subpart.

(4) Sum the products calculated in accordance with

paragraph (g)(3) of this section to obtain the total

concentration of dioxins/furans emitted in terms of toxic

equivalency.

* * * * *

(j) You must determine dioxins/furans total mass

basis by following the procedures in paragraphs (j)(1)


(1) Measure the concentration of each dioxin/furan

tetra- through octa-chlorinated isomer emitted using EPA

Method 23 at 40 CFR part 60, appendix A-7.

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(3) Sum the quantities measured in accordance with

paragraphs (j)(1) and (2) of this section to obtain the

total concentration of dioxins/furans emitted in terms of

total mass basis.



b. Revising paragraphs (b) through (d).

c. Revising paragraph (f).

d. Revising paragraphs (g) introductory text and

(g)(1).

e. Revising paragraphs (h) and (i).

f. Revising paragraphs (j) introductory text, (j)(1),

and (j)(3).

j. Revising paragraph (l) introductory text.

k. Revising paragraph (m)(2).

l. Revising paragraph (n)(4).

m. Revising paragraph (o).

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n. Revising paragraph (r)(1).

o. Revising paragraphs (s) introductory text, (s)(1)

introductory text, and (s)(2).

p. Revising paragraph (t) introductory text, (t)(1)

introductory text, and (t)(2).

q. Revising paragraphs (u)(1) and (u)(2).

r. Revising paragraphs (w) introductory paragraph,

(w)(1), (w)(2), and (w)(3).

s. Adding paragraph (x).


§ 60.2710 How do I demonstrate continuous compliance with

the emission limitations and the operating limits?

(a) * * *

(6) All monitoring systems necessary for compliance

with any newly applicable monitoring requirements which

apply as a result of the cessation or commencement or

recommencement of combusting solid waste must be installed

and operational as of the effective date of the waste-to-

fuel, or fuel-to-waste switch. All calibration and drift

checks must be performed as of the effective date of the

waste-to-fuel, or fuel-to-waste switch. Relative accuracy

tests must be performed as of the performance test deadline

for PM CEMS (if PM CEMS are elected to demonstrate

continuous compliance with the particulate matter emission

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limits). Relative accuracy testing for other CEMS need not

be repeated if that testing was previously performed

consistent with section 112 monitoring requirements or

monitoring requirements under this subpart.

(b) You must conduct an annual performance test for

the pollutants listed in table 2 of this subpart or tables

6 through 9 of this subpart and opacity for each CISWI unit

as required under § 60.2690. The annual performance test

must be conducted using the test methods listed in table 2

of this subpart or tables 6 through 9 of this subpart and

the procedures in § 60.2690. Opacity must be measured using

EPA Reference Method 9 at 40 CFR part 60. Annual

performance tests are not required if you use CEMS or

continuous opacity monitoring systems to determine

compliance.

(c) You must continuously monitor the operating

parameters specified in § 60.2675 or established under §

60.2680 and as specified in § 60.2735. Operation above the

established maximum or below the established minimum

operating limits constitutes a deviation from the

established operating limits. Three-hour block average

values are used to determine compliance (except for

baghouse leak detection system alarms) unless a different

averaging period is established under §60.2680 or, for

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energy recovery units, where the averaging time for each

operating parameter is a 30-day rolling, calculated each

hour as the average of the previous 720 operating hours.

Operation above the established maximum, below the

established minimum, or outside the allowable range of the

operating limits specified in paragraph (a) of this section

constitutes a deviation from your operating limits

established under this subpart, except during performance

tests conducted to determine compliance with the emission

and operating limits or to establish new operating limits.

Operating limits are confirmed or reestablished during

performance tests.

(d) You must burn only the same types of waste and

fuels used to establish subcategory applicability (for

ERUs) and operating limits during the performance test.

* * * * *

(f) For energy recovery units, you must conduct an

annual performance test for opacity using EPA Reference

Method 9 at 40 CFR part 60 (except where particulate matter

continuous monitoring system or continuous parameter

monitoring systems are used) and the pollutants listed in

table 7 of this subpart.

(g) For facilities using a CEMS to demonstrate

compliance with the carbon monoxide emission limit,

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compliance with the carbon monoxide emission limit may be

demonstrated by using the CEMS according to the following

requirements:

(1) You must measure emissions according to §60.13 to

calculate 1-hour arithmetic averages, corrected to 7

percent oxygen. CEMS data during startup and shutdown, as


oxygen, and are measured at stack oxygen content. You must

demonstrate initial compliance with the carbon monoxide

emissions limit using a 30-day rolling average of the 1-

hour arithmetic average emission concentrations, including

CEMS data during startup and shutdown as defined in this


of EPA Reference Method 19 at 40 CFR part 60, appendix A–7.

* * * * *

(h) Coal and liquid/gas energy recovery units with

annual average heat input rates greater than 250 MMBtu/hr

may elect to demonstrate continuous compliance with the

particulate matter emissions limit using a particulate

matter CEMS according to the procedures in § 60.2730(n)

instead of the continuous parameter monitoring system

specified in § 60.2710(i). Coal and liquid/gas energy

recovery units with annual average heat input rates less

than 250 MMBtu/hr, incinerators, and small remote

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incinerators may also elect to demonstrate compliance using

a particulate matter CEMS according to the procedures in §

60.2730(n) instead of particulate matter testing with EPA

Method 5 at 40 CFR part 60, appendix A-3 and, if

applicable, the continuous opacity monitoring requirements

in paragraph (i) of this section.

(i) For energy recovery units with annual average heat

input rates greater than or equal to 10 MMBTU/hour but less

than 250 MMBtu/hr you must install, operate, certify and

maintain a continuous opacity monitoring system (COMS)

according to the procedures in §60.2730.

(j) For waste-burning kilns, you must conduct an

annual performance test for the pollutants (except mercury

and particulate matter, and hydrogen chloride if no acid

gas wet scrubber is used) listed in table 8 of this

subpart. If your waste-burning kiln is not equipped with a

wet scrubber or dry scrubber, you must determine compliance

with the hydrogen chloride emission limit using a CEMS as

specified in § 60.2730. You must determine compliance with

particulate matter using CPMS. You must determine

compliance with the mercury emissions limit using a mercury

CEMS according to the following requirements:

(1) Operate a CEMS in accordance with performance

specification 12A at 40 CFR part 60, appendix B or a

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sorbent trap based integrated monitor in accordance with

performance specification 12B at 40 CFR part 60, appendix

B. The duration of the performance test must be a calendar

month. For each calendar month in which the waste-burning

kiln operates, hourly mercury concentration data and stack

gas volumetric flow rate data must be obtained. You must

demonstrate compliance with the mercury emissions limit

using a 30-day rolling average of these 1-hour mercury


shutdown as defined in this subpart, calculated using

Equation 19-19 in section 12.4.1 of EPA Reference Method 19

at 40 CFR part 60, appendix A–7 of this part. CEMS data

during startup and shutdown, as defined in this subpart,

are not corrected to 7 percent oxygen, and are measured at

stack oxygen content.

* * * * *

(3) The owner or operator of a waste-burning kiln must

demonstrate initial compliance by operating a mercury CEMS

while the raw mill of the in-line kiln/raw mill is

operating under normal conditions and including at least

one period when the raw mill is off.

* * * * *

(l) For each CMS required in this section, you must

develop and submit to the EPA Administrator for approval a

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site-specific monitoring plan according to the requirements

of this paragraph (l) that addresses paragraphs (l)(1)(i)

through (vi) of this section.

* * * * *

(m) * * *

(2) Use a flow sensor with a measurement sensitivity

at full scale of no greater than 2 percent.

* * * * *

(n) * * *

(4) Perform checks at the frequency outlined in your

site-specific monitoring plan to ensure pressure

measurements are not obstructed (e.g., check for pressure

tap pluggage daily).

* * * * *

(o) If you have an operating limit that requires a pH

monitoring system, you must meet the requirements in

paragraphs (l) and (o)(1) through (4) of this section.

(1) Install the pH sensor in a position that provides

a representative measurement of scrubber effluent pH.

(2) Ensure the sample is properly mixed and

representative of the fluid to be measured.

(3) Conduct a performance evaluation of the pH

monitoring system in accordance with your monitoring plan

at least once each process operating day.

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(4) Conduct a performance evaluation (including a two-

point calibration with one of the two buffer solutions

having a pH within 1 of the pH of the operating limit) of

the pH monitoring system in accordance with your monitoring

plan at the time of each performance test but no less

frequently than quarterly.

* * * * *

(r) * * *

(1) Install a bag leak detection sensor(s) in a

position(s) that will be representative of the relative or

absolute particulate matter loadings for each exhaust

stack, roof vent, or compartment (e.g., for a positive

pressure fabric filter) of the fabric filter.

* * * * *

(s) For facilities using a CEMS to demonstrate

compliance with the sulfur dioxide emission limit,

compliance with the sulfur dioxide emission limit may be

demonstrated by using the CEMS specified in §60.2730 to

measure sulfur dioxide. CEMS data during startup and






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subpart, using Equation 19-19 in section 12.4.1 of EPA

Reference Method 19 at 40 CFR part 60, appendix A-7. The

sulfur dioxide CEMS must be operated according to

performance specification 2 in appendix B of this part and

must follow the procedures and methods specified in this

paragraph (s). For sources that have actual inlet emissions

less than 100 parts per million dry volume, the relative

accuracy criterion for inlet sulfur dioxide CEMS should be

no greater than 20 percent of the mean value of the

reference method test data in terms of the units of the

emission standard, or 5 parts per million dry volume

absolute value of the mean difference between the reference

method and the CEMS, whichever is greater.


required by performance specification 2 in appendix B of

this part, collect sulfur dioxide and oxygen (or carbon



in paragraphs (s)(1)(i) and (ii) of this section.

* * * * *

(2) The span value of the CEMS at the inlet to the

sulfur dioxide control device must be 125 percent of the

maximum estimated hourly potential sulfur dioxide emissions

of the unit subject to this rule. The span value of the

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CEMS at the outlet of the sulfur dioxide control device

must be 50 percent of the maximum estimated hourly

potential sulfur dioxide emissions of the unit subject to

this rule.

* * * * *

(t) For facilities using a CEMS to demonstrate

continuous compliance with the nitrogen oxides emission

limit, compliance with the nitrogen oxides emission limit

may be demonstrated by using the CEMS specified in §60.2730

to measure nitrogen oxides. CEMS data during startup and




arithmetic average emission concentration using Equation

19-19 in section 12.4.1 of EPA Reference Method 19 at 40

CFR part 60, appendix A-7. The nitrogen oxides CEMS must be

operated according to performance specification 2 in

appendix B of this part and must follow the procedures and

methods specified in paragraphs (t)(1) through (t)(5) of

this section.


required by performance specification 2 of appendix B of

this part, collect nitrogen oxides and oxygen (or carbon


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in paragraphs (t)(1)(i) and (ii) of this section.

(i) For nitrogen oxides, EPA Reference Method 7 or 7E

at 40 CFR part 60, appendix A-4 must be used.

(ii) For oxygen (or carbon dioxide), EPA Reference

Method 3A or 3B, or as an alternative ANSI/ASME PTC 19.10–

1981 (incorporated by reference, see § 60.17), as

applicable, must be used.

(2) The span value of the CEMS must be 125 percent of

the maximum estimated hourly potential nitrogen oxide

emissions of unit.

* * * * *

(u) * * *

(1) Demonstrate compliance with the appropriate

emission limit(s) using a 30-day rolling average of 1-hour




of EPA Reference Method 19 at 40 CFR part 60, appendix A-7.

CEMS data during startup and shutdown, as defined in this


measured at stack oxygen content.

(2) Operate all CEMS in accordance with the applicable

procedures under appendices B and F of this part.

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* * * * *

(w) For energy recovery units with a design heat input



maintain a oxygen analyzer system as defined in §60.2875

according to the procedures in paragraphs (w)(1) through





compliance with paragraph (w)(3) of this section at all

times.



limit for oxygen is not below the lowest hourly average

oxygen concentration measured during the most recent CO

performance test.

* * * * *

(x) For energy recovery units with annual average heat




as specified in paragraphs (x)(1) through (8) of this


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power, PM scrubber pressure).




60.2710(l) and (x)(1)(i) through (iii) of this section.



scintillation, beta attenuation, or mass accumulation of

the exhaust gas or representative sample. The reportable

measurement output from the PM CPMS must be expressed as

milliamps.











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60.2675.











(x)(1)(ii) of this section, except for periods of










except:

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report);



subpart.







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limit, you must:



















subpart.

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(a)(3)(ii) to read as follows:

§ 60.2720 May I conduct performance testing less often?

(a) * * *

(3) * * *

(ii) For fugitive emissions, visible emissions (of

combustion ash from the ash conveying system) for 2 percent

of the time during each of the three 1-hour observation

periods.

* * * * *



b. Revising paragraph (e) introductory text.

c. Revising paragraphs (f) through (j).

d. Revising paragraph (l)(1) and (2).

e. Revising paragraph (m) introductory text.

f. Revising paragraphs (n) introductory text, (n)(6),

(n)(7), (n)(9), (n)(10), (n)(11), and paragraph (n)(12)

introductory text.

g. Removing paragraph (n)(14).

h. Revising paragraphs (o)(1), (o)(2), and (o)(9).

i. Adding paragraphs (r) and (s).


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§ 60.2730 What monitoring equipment must I install and what

parameters must I monitor?

* * * * *

(c) If you are using something other than a wet

scrubber, activated carbon, selective non-catalytic


to comply with the emission limitations under §60.2670, you

must install, calibrate (to the manufacturers’

specifications), maintain, and operate the equipment

necessary to monitor compliance with the site-specific

operating limits established using the procedures in

§60.2680.

* * * * *

(e) If you use selective noncatalytic reduction to

comply with the emission limitations, you must complete the

following:

* * * * *

(f) If you use an electrostatic precipitator to comply

with the emission limits of this subpart, you must monitor

the secondary power to the electrostatic precipitator

collection plates and maintain the 3-hour block averages at

or above the operating limits established during the

mercury or particulate matter performance test.

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(g) For waste-burning kilns not equipped with a wet

scrubber or dry scrubber, in place of hydrogen chloride

testing with EPA Method 321 at 40 CFR part 63, appendix A,

an owner or operator must install, calibrate, maintain, and

operate a CEMS for monitoring hydrogen chloride emissions


system. To demonstrate continuous compliance with the

hydrogen chloride emissions limit for units other than

waste-burning kilns not equipped with a wet scrubber or dry

scrubber, a facility may substitute use of a hydrogen

chloride CEMS for conducting the hydrogen chloride annual

performance test, monitoring the minimum hydrogen chloride

sorbent flow rate, monitoring the minimum scrubber liquor

pH.

(h) To demonstrate continuous compliance with the

particulate matter emissions limit, a facility may

substitute use of a particulate matter CEMS for conducting

the particulate matter annual performance test and other

CMS monitoring for PM compliance (e.g., bag leak detectors,

ESP secondary power, PM scrubber pressure).

(i) To demonstrate continuous compliance with the

dioxin/furan emissions limit, a facility may substitute use

of a continuous automated sampling system for the

dioxin/furan annual performance test. You must record the

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output of the system and analyze the sample according to

EPA Method 23 at 40 CFR part 60, appendix A-7. This option

to use a continuous automated sampling system takes effect

on the date a final performance specification applicable to

dioxin/furan from continuous monitors is published in the

Federal Register. The owner or operator who elects to

continuously sample dioxin/furan emissions instead of

sampling and testing using EPA Method 23 at 40 CFR part 60,

appendix A-7 must install, calibrate, maintain and operate

a continuous automated sampling system and must comply with

the requirements specified in § 60.58b(p) and (q). A

facility may substitute continuous dioxin/furan monitoring

for the minimum sorbent flow rate, if activated carbon

sorbent injection is used solely for compliance with the

dioxin/furan emission limit.

(j) To demonstrate continuous compliance with the

mercury emissions limit, a facility may substitute use of a

continuous automated sampling system for the mercury annual

performance test. You must record the output of the system

and analyze the sample at set intervals using any suitable

determinative technique that can meet performance

specification 12B criteria. This option to use a continuous

automated sampling system takes effect on the date a final

performance specification applicable to mercury from

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monitors is published in the Federal Register. The owner or

operator who elects to continuously sample mercury

emissions instead of sampling and testing using EPA Method

29 or 30B at 40 CFR part 60, appendix A-8, ASTM D6784-02

(Reapproved 2008) (incorporated by reference, see §60.17),

or an approved alternative method for measuring mercury

emissions, must install, calibrate, maintain and operate a

continuous automated sampling system and must comply with

the requirements specified in §60.58b(p) and (q). A

facility may substitute continuous mercury monitoring for

the minimum sorbent flow rate, if activated carbon sorbent

injection is used solely for compliance with the mercury

emission limit.

(k) To demonstrate continuous compliance with the

nitrogen oxides emissions limit, a facility may substitute

use of a CEMS for the nitrogen oxides annual performance

test to demonstrate compliance with the nitrogen oxides

emissions limits and monitoring the charge rate, secondary

chamber temperature and reagent flow for selective

noncatalytic reduction, if applicable.

(1) Install, calibrate, maintain and operate a CEMS

for measuring nitrogen oxides emissions discharged to the



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must be followed for installation, evaluation and operation

of the CEMS.


test for nitrogen oxides is completed or is required to be

completed under §60.2690, compliance with the emission

limit for nitrogen oxides required under § 60.52b(d) must

be determined based on the 30-day rolling average of the

hourly emission concentrations using CEMS outlet data. The

1-hour arithmetic averages must be expressed in parts per

million by volume corrected to 7 percent oxygen (dry basis)

and used to calculate the 30-day rolling average






(l) * * *

(1) Install, calibrate, maintain and operate a CEMS

for measuring sulfur dioxide emissions discharged to the



B of this part, the quality assurance requirements of

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procedure 1 of appendix F of this part and the procedures

under §60.13 must be followed for installation, evaluation

and operation of the CEMS.


test for sulfur dioxide is completed or is required to be

completed under § 60.2690, compliance with the sulfur

dioxide emission limit may be determined based on the 30-


emission concentrations using CEMS outlet data. The 1-hour

arithmetic averages must be expressed in parts per million

corrected to 7 percent oxygen (dry basis) and used to

calculate the 30-day rolling average emission






(m) For energy recovery units that do not use a wet

scrubber, fabric filter with bag leak detection system, or

particulate matter CEMS, you must install, operate, certify

and maintain a continuous opacity monitoring system

according to the procedures in paragraphs (m)(1) through

(5) of this section by the compliance date specified in §

60.2670. Energy recovery units that use a particulate

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matter CEMS to demonstrate initial and continuing

compliance according to the procedures in §60.2730(n) are

not required to install a continuous opacity monitoring

system and must perform the annual performance tests for

opacity consistent with § 60.2710(f).

* * * * *

(n) For coal and liquid/gas energy recovery units,

incinerators, and small remote incinerators, an owner or

operator may elect to install, calibrate, maintain and

operate a CEMS for monitoring particulate matter emissions


system. The owner or operator of an affected facility who

continuously monitors particulate matter emissions instead

of conducting performance testing using EPA Method 5 at 40

CFR part 60, appendix A-3 or, as applicable, monitor with a

particulate matter CPMS according to paragraph (r) of this

section, must install, calibrate, maintain and operate a

CEMS and must comply with the requirements specified in

paragraphs (n)(1) through (13) of this section.

* * * * *

(6) The owner or operator of an affected facility must

conduct an initial performance test for particulate matter

emissions as required under § 60.2690. Compliance with the

particulate matter emission limit, if PM CEMS are elected

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for demonstrating compliance, must be determined by using

the CEMS specified in paragraph (n) of this section to

measure particulate matter. You must calculate a 30-day

rolling average of 1-hour arithmetic average emission


shutdown, as defined in this subpart, using Equation 19-19

in section 12.4.1 of EPA Reference Method 19 at 40 CFR part

60, appendix A-7 of this part.

(7) Compliance with the particulate matter emission

limit must be determined based on the 30-day rolling

average calculated using Equation 19-19 in section 12.4.1

of EPA Reference Method 19 at 40 CFR part 60, Appendix A-7

of the part from the 1-hour arithmetic average of the CEMS

outlet data.

* * * * *

(9) The 1-hour arithmetic averages required under

paragraph (n)(7) of this section must be expressed in

milligrams per dry standard cubic meter corrected to 7

percent oxygen (or carbon dioxide)(dry basis) and must be

used to calculate the 30-day rolling average emission




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(10) All valid CEMS data must be used in calculating

average emission concentrations even if the minimum CEMS

data requirements of paragraph (n)(8) of this section are

not met.

(11) The CEMS must be operated according to

performance specification 11 in appendix B of this part.

(12) During each relative accuracy test run of the

CEMS required by performance specification 11 in appendix B

of this part, particulate matter and oxygen (or carbon

dioxide) data must be collected concurrently (or within a

30-to 60-minute period) by both the CEMS and the following

test methods.

* * * * *

(o) * * *


for measuring carbon monoxide emissions discharged to the


requirements under performance specification 4B of appendix





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test for carbon monoxide is completed or is required to be

completed under §60.2690, compliance with the carbon

monoxide emission limit may be determined based on the 30-


emission concentrations, including CEMS data during startup

and shutdown as defined in this subpart, using CEMS outlet

data. Except for CEMS data during startup and shutdown, as

defined in this subpart, the 1-hour arithmetic averages

must be expressed in parts per million corrected to 7

percent oxygen (dry basis) and used to calculate the 30-day

rolling average emission concentrations. CEMS data

collected during startup or shutdown, as defined in this


measured at stack oxygen content. The 1-hour arithmetic

averages must be calculated using the data points required

under § 60.13(e)(2).

* * * * *

(q) For energy recovery units with a design heat input




according to the procedures in paragraphs (q)(1) through


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compliance with paragraph (q)(3) of this section at all

times.



limit for oxygen according to paragraph (q)(4) of this

section is not below the lowest hourly average oxygen

concentration measured during the most recent CO

performance test.




of this part.

(r) For energy recovery units with annual average heat




as specified in paragraphs (r)(1) through (8) of this




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power, PM scrubber pressure)



specific monitoring plan developed in accordance with

§60.2710(l) and (r)(1)(i) through (iii) of this section.



scintillation, beta attenuation, or mass accumulation of

the exhaust gas or representative sample. The reportable

measurement output from the PM CPMS must be expressed as

milliamps.












60.2675.

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Express the PM CPMS output as milliamps..








(r)(1)(ii) of this section, except for periods of










except:




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report);



subpart.









limit, you must:

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subpart.

(s) If you use a dry scrubber to comply with the

emission limits of this subpart, you must monitor the

injection rate of each sorbent and maintain the 3-hour

block averages at or above the operating limits established

during the hydrogen chloride performance test.

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a. Revising introductory text.

b. Revising paragraph (b)(5).

c. Revising paragraph (e).

d. Revising paragraphs (o)(2) through (7).

e. Adding paragraphs (o)(8) and (9).

f. Revising paragraph (u) and (v).

g. Adding paragraph (w).


§ 60.2740 What records must I keep?

You must maintain the items (as applicable) as

specified in paragraphs (a), (b), and (e) through (w) of

this section for a period of at least 5 years:

* * * * *

(b) * * *

(5) For affected CISWI units that establish operating

limits for controls other than wet scrubbers under §

60.2675(d) through (g) or § 60.2680, you must maintain data

collected for all operating parameters used to determine

compliance with the operating limits. For energy recovery

units using activated carbon injection or a dry scrubber,

you must also maintain records of the load fraction and

corresponding sorbent injection rate records.

* * * * *

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(e) Identification of calendar dates and times for

which data show a deviation from the operating limits in

table 3 of this subpart or a deviation from other operating

limits established under § 60.2675(d) through (g) or §

60.2680 with a description of the deviations, reasons for

such deviations, and a description of corrective actions

taken.

* * * * *

(o) * * *

(2) All 1-hour average concentrations of sulfur

dioxide emissions. You must indicate which data are CEMS


(3) All 1-hour average concentrations of nitrogen

oxides emissions. You must indicate which data are CEMS


(4) All 1-hour average concentrations of carbon

monoxide emissions. You must indicate which data are CEMS


(5) All 1-hour average concentrations of particulate

matter emissions. You must indicate which data are CEMS


(6) All 1-hour average concentrations of mercury

emissions. You must indicate which data are CEMS data

during startup and shutdown.

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(7) All 1-hour average concentrations of hydrogen

chloride emissions. You must indicate which data are CEMS


(8) All 1-hour average percent oxygen concentrations.

(9) All 1-hour average PM CPMS readings or particulate

matter CEMS outputs.

* * * * *

(u) For operating units that combust non-hazardous

secondary materials that have been determined not to be

solid waste pursuant to § 241.3(b)(1), you must keep a

record which documents how the secondary material meets

each of the legitimacy criteria under § 241.3(d)(1). If you

combust a fuel that has been processed from a discarded

non-hazardous secondary material pursuant to § 241.3(b)(4),

you must keep records as to how the operations that

produced the fuel satisfies the definition of processing in

§ 241.2 and each of the legitimacy criteria in §

241.3(d)(1) of this chapter. If the fuel received a non-

waste determination pursuant to the petition process

submitted under § 241.3(c), you must keep a record that

documents how the fuel satisfies the requirements of the

petition process. For operating units that combust non-

hazardous secondary materials as fuel per § 241.4, you must

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keep records documenting that the material is a listed non-

waste under § 241.4(a).

(v) Records of the criteria used to establish that the

unit qualifies as a small power production facility under

section 3(17)(C) of the Federal Power Act (16 U.S.C.

796(17)(C)) and that the waste material the unit is

proposed to burn is homogeneous.

(w) Records of the criteria used to establish that the

unit qualifies as a cogeneration facility under section

3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B))

and that the waste material the unit is proposed to burn is

homogeneous.


a. Revising paragraph (m) introductory text.

b. Revising paragraph (n).

c. Adding paragraph (p).


§ 60.2770 What information must I include in my annual

report?

* * * * *

(m) If there were periods during which the continuous

monitoring system, including the CEMS, was out of control

as specified in paragraph (o) of this section, the annual

report must contain the following information for each

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deviation from an emission or operating limitation

occurring for a CISWI unit for which you are using a

continuous monitoring system to comply with the emission

and operating limitations in this subpart.

* * * * *

(n) If there were periods during which the continuous

monitoring system, including the CEMS, was not out of

control as specified in paragraph (o) of this section, a

statement that there were not periods during which the

continuous monitoring system was out of control during the

reporting period.

* * * * *

(p) For energy recovery units, include the annual heat

input and average annual heat input rate of all fuels being

burned in the unit to verify which subcategory of energy

recovery unit applies.


§ 60.2795 In what form can I submit my reports?

(a) Submit initial, annual, and deviation reports

electronically or in paper format, postmarked on or before

the submittal due dates.

(b) Submit results of performance tests and CEMS

performance evaluation tests as follows.

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performance test as required by this subpart, you must

submit the results of the performance tests required by

this subpart to EPA’s WebFIRE database by using the

Compliance and Emissions Data Reporting Interface (CEDRI)

that is accessed through EPA’s Central Data Exchange

(CDX)(www.epa.gov/cdx). Performance test data must be

submitted in the file format generated through use of EPA’s

Electronic Reporting Tool (ERT) (see

http://www.epa.gov/ttn/chief/ert/index.html). Only data

collected using test methods on the ERT website are subject

to this requirement for submitting reports electronically

to WebFIRE. Owners or operators who claim that some of the

information being submitted for performance tests is

confidential business information (CBI) must submit a

complete ERT file including information claimed to be CBI

on a compact disk, flash drive, or other commonly used

electronic storage media to EPA. The electronic media must

be clearly marked as CBI and mailed to U.S. EPA/OAPQS/CORE

CBI Office, Attention: WebFIRE Administrator, MD C404-02,

4930 Old Page Rd., Durham, NC 27703. The same ERT file with

the CBI omitted must be submitted to EPA via CDX as

described earlier in this paragraph. At the discretion of

the delegated authority, you must also submit these

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reports, including the confidential business information,

to the delegated authority in the format specified by the

delegated authority. For any performance test conducted

using test methods that are not listed on the ERT website,

the owner or operator shall submit the results of the

performance test in paper submissions to the Administrator.


CEMS performance evaluation test, as defined in this

subpart and required by this subpart, you must submit the

relative accuracy test audit (RATA) data electronically

into EPA’s Central Data Exchange by using CEDRI as

mentioned in paragraph (b)(1) of this section. Only RATA

pollutants that can be documented with the ERT (as listed

on the ERT website) are subject to this requirement. For

any performance evaluations with no corresponding RATA

pollutants listed on the ERT website, the owner or operator

shall submit the results of the performance evaluation in

paper submissions to the Administrator.


a. Adding definitions for “30-day rolling average,”

“Annual heat input,” “Average annual heat input rate,”

“Contained gaseous material,” “Continuous emission

monitoring system,” “Dry scrubber,” “Foundry sand thermal

reclamation unit,” “Load fraction,” “Municipal solid waste

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or municipal type solid waste,” “Oxygen analyzer system,”

“Oxygen trim system,” “Responsible official,” and “Solid

waste.”

b. Revising definitions for “Calendar year,” “Chemical

recovery unit,” “Commercial and industrial solid waste

incinerator (CISWI),” “Continuous monitoring system (CMS),”

“Cyclonic burn barrel,” “Energy recovery unit,” “Energy

recovery unit designed to burn biomass (Biomass),” “Energy

recovery unit designed to burn liquid waste materials and

gas (Liquid/gas),” “Incinerator,” “Modification or modified

CISWI unit,” “Process change”, “Raw mill”, “Small, remote

incinerator”, “Soil treatment unit,” “Solid waste

incineration unit,” “Space heater,” “Waste burning kiln,”

and “Wet scrubber.”

c. Removing the definitions for “Cyclonic barrel

burner” and “Homogeneous waste.”


§60.2875 What definitions must I know?

* * * * *

30-day rolling average means the arithmetic mean of

the previous 720 hours of valid operating data. Valid data

excludes periods when this unit is not operating. The 720

hours should be consecutive, but not necessarily continuous

if operations are intermittent.

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* * * * *

Annual heat input means the heat input for the 12

months preceding the compliance demonstration.

* * * * *

Average annual heat input rate means annual heat input

divided by the hours of operation for the 12 months

preceding the compliance demonstration.

* * * * *

Calendar year means 365 consecutive days starting on

January 1 and ending on December 31.

CEMS data during startup and shutdown means the

following:

(1) For incinerators, small remote incinerators, and

energy recovery units: CEMS data collected during the first

hours of operation of a CISWI unit startup from a cold

start until waste is fed into the unit and the hours of

operation following the cessation of waste material being

fed to the CISWI unit during a unit shutdown. For each

startup event, the length of time that CEMS data may be

claimed as being CEMS data during startup must be 48

operating hours or less. For each shutdown event, the

length of time that CEMS data may be claimed as being CEMS

data during shutdown must be 24 operating hours or less.

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(2) For waste-burning kilns: CEMS data collected

during the periods of kiln operation that do not include

normal operations. Startup begins when the kiln’s induced

fan is turned on and continues until continuous feed is

introduced into the kiln, at which time the kiln is in

normal operating mode. Shutdown begins when feed to the

kiln is halted.

Chemical recovery unit means combustion units burning

materials to recover chemical constituents or to produce

chemical compounds where there is an existing commercial

market for such recovered chemical constituents or

compounds. A chemical recovery unit is not an incinerator,

a waste-burning kiln, an energy recovery unit or a small,

remote incinerator under this subpart. The following seven

types of units are considered chemical recovery units:

(1) Units burning only pulping liquors (i.e., black

liquor) that are reclaimed in a pulping liquor recovery

process and reused in the pulping process.

(2) Units burning only spent sulfuric acid used to

produce virgin sulfuric acid.

(3) Units burning only wood or coal feedstock for the

production of charcoal.

(4) Units burning only manufacturing byproduct

streams/residue containing catalyst metals that are

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reclaimed and reused as catalysts or used to produce

commercial grade catalysts.

(5) Units burning only coke to produce purified carbon

monoxide that is used as an intermediate in the production

of other chemical compounds.

(6) Units burning only hydrocarbon liquids or solids

to produce hydrogen, carbon monoxide, synthesis gas, or

other gases for use in other manufacturing processes.

(7) Units burning only photographic film to recover

silver.

* * * * *

Commercial and industrial solid waste incineration

(CISWI) unit means any distinct operating unit of any

commercial or industrial facility that combusts, or has

combusted in the preceding 6 months, any solid waste as

that term is defined in 40 CFR part 241. If the operating

unit burns materials other than traditional fuels as

defined in § 241.2 that have been discarded, and you do not

keep and produce records as required by § 60.2740(u), the

operating unit is a CISWI unit. While not all CISWI units

will include all of the following components, a CISWI unit

includes, but is not limited to, the solid waste feed

system, grate system, flue gas system, waste heat recovery

equipment, if any, and bottom ash system. The CISWI unit

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does not include air pollution control equipment or the

stack. The CISWI unit boundary starts at the solid waste

hopper (if applicable) and extends through two areas: the

combustion unit flue gas system, which ends immediately

after the last combustion chamber or after the waste heat

recovery equipment, if any; and the combustion unit bottom

ash system, which ends at the truck loading station or

similar equipment that transfers the ash to final disposal.

The CISWI unit includes all ash handling systems connected

to the bottom ash handling system.

Contained gaseous material means gases that are in a

container when that container is combusted.

Continuous emission monitoring system (CEMS) means the

total equipment that may be required to meet the data

acquisition and availability requirements of this subpart,

used to sample, condition (if applicable), analyze, and

provide a record of emissions.

Continuous monitoring system (CMS) means the total

equipment, required under the emission monitoring sections

in applicable subparts, used to sample and condition (if

applicable), to analyze, and to provide a permanent record

of emissions or process parameters. A particulate matter

continuous parameter monitoring system (PM CPMS) is a type

of CMS.

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Cyclonic burn barrel means a combustion device for

waste materials that is attached to a 55 gallon, open-head

drum. The device consists of a lid, which fits onto and

encloses the drum, and a blower that forces combustion air

into the drum in a cyclonic manner to enhance the mixing of

waste material and air. A cyclonic burn barrel is not an



* * * * *

Dry scrubber means an add-on air pollution control

system that injects dry alkaline sorbent (dry injection) or

sprays an alkaline sorbent (spray dryer) to react with and

neutralize acid gas in the exhaust stream forming a dry

powder material. Sorbent injection systems in fluidized bed

boilers and process heaters are included in this

definition. A dry scrubber is a dry control system.

* * * * *

Energy recovery unit means a combustion unit


Administrator in 40 CFR part 241) for energy recovery.

Energy recovery units include units that would be

considered boilers and process heaters if they did not

combust solid waste.

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Energy recovery unit designed to burn biomass

(Biomass) means an energy recovery unit that burns solid

waste, biomass, and non-coal solid materials but less than

10 percent coal, on a heat input basis on an annual

average, either alone or in combination with liquid waste,

liquid fuel or gaseous fuels.

* * * * *

Energy recovery unit designed to burn liquid waste

materials and gas (Liquid/gas) means an energy recovery

unit that burns a liquid waste with liquid or gaseous fuels

not combined with any solid fuel or waste materials.

* * * * *

Foundry sand thermal reclamation unit means a type of

part reclamation unit that removes coatings that are on

foundry sand. A foundry sand thermal reclamation unit is

not an incinerator, a waste-burning kiln, an energy

recovery unit or a small, remote incinerator under this

subpart.

Incinerator means any furnace used in the process of


Administrator in 40 CFR part 241) for the purpose of

reducing the volume of the waste by removing combustible

matter. Incinerator designs include single chamber and two-

chamber.

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* * * * *

Load fraction means the actual heat input of an energy

recovery unit divided by heat input during the performance

test that established the minimum sorbent injection rate or

minimum activated carbon injection rate, expressed as a

fraction (e.g., for 50 percent load the load fraction is

0.5).

* * * * *

Modification or modified CISWI unit means a CISWI unit

that has been changed later than [THE DATE SIX MONTHS AFTER

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and

that meets one of two criteria:

(1) The cumulative cost of the changes over the life

of the unit exceeds 50 percent of the original cost of

building and installing the CISWI unit (not including the

cost of land) updated to current costs (current dollars).

To determine what systems are within the boundary of the

CISWI unit used to calculate these costs, see the

definition of CISWI unit.

(2) Any physical change in the CISWI unit or change in

the method of operating it that increases the amount of any

air pollutant emitted for which section 129 or section 111

of the Clean Air Act has established standards.

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Municipal solid waste or municipal-type solid waste

means household, commercial/retail, or institutional waste.

Household waste includes material discarded by residential

dwellings, hotels, motels, and other similar permanent or

temporary housing. Commercial/retail waste includes

material discarded by stores, offices, restaurants,

warehouses, nonmanufacturing activities at industrial

facilities, and other similar establishments or facilities.

Institutional waste includes materials discarded by

schools, by hospitals (nonmedical), by nonmanufacturing

activities at prisons and government facilities, and other

similar establishments or facilities. Household,

commercial/retail, and institutional waste does include

yard waste and refuse-derived fuel. Household,

commercial/retail, and institutional waste does not include

used oil; sewage sludge; wood pallets; construction,

renovation, and demolition wastes (which include railroad

ties and telephone poles); clean wood; industrial process

or manufacturing wastes; medical waste; or motor vehicles

(including motor vehicle parts or vehicle fluff).

* * * * *

Oxygen analyzer system means all equipment required to

determine the oxygen content of a gas stream and used to

monitor oxygen in the boiler or process heater flue gas,

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boiler/process heater, firebox, or other appropriate

location. This definition includes oxygen trim systems and

certified oxygen CEMS. The source owner or operator is

responsible to install, calibrate, maintain, and operate

the oxygen analyzer system in accordance with the

manufacturer’s recommendations.

Oxygen trim system means a system of monitors that is

used to maintain excess air at the desired level in a

combustion device. A typical system consists of a flue gas

oxygen and/or carbon monoxide monitor that automatically

provides a feedback signal to the combustion air

controller.

* * * * *

Process change means any of the following physical or

operational changes:


excluded) to the CISWI unit which may increase the emission

rate of any air pollutant to which a standard applies;

(2) An operational change to the CISWI unit where a

new type of non-hazardous secondary material is being

combusted;


excluded) to the air pollution control devices used to

comply with the emission limits for the CISWI unit (e.g.,

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replacing an electrostatic precipitator with a fabric

filter);

(4) An operational change to the air pollution control

devices used to comply with the emission limits for the

affected CISWI unit (e.g., change in the sorbent injection

rate used for activated carbon injection).

* * * * *

Raw mill means a ball or tube mill, vertical roller

mill or other size reduction equipment, that is not part of

an in-line kiln/raw mill, used to grind feed to the

appropriate size. Moisture may be added or removed from the

feed during the grinding operation. If the raw mill is used

to remove moisture from feed materials, it is also, by

definition, a raw material dryer. The raw mill also

includes the air separator associated with the raw mill.

* * * * *

Responsible official means one of the following:

(1) For a corporation: a president, secretary,

treasurer, or vice-president of the corporation in charge

of a principal business function, or any other person who

performs similar policy or decision-making functions for

the corporation, or a duly authorized representative of

such person if the representative is responsible for the

overall operation of one or more manufacturing, production,

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or operating facilities applying for or subject to a permit

and either:

(i) The facilities employ more than 250 persons or

have gross annual sales or expenditures exceeding $25

million (in second quarter 1980 dollars); or

(ii) The delegation of authority to such

representatives is approved in advance by the permitting

authority;

(2) For a partnership or sole proprietorship: a

general partner or the proprietor, respectively;

(3) For a municipality, State, Federal, or other

public agency: Either a principal executive officer or

ranking elected official. For the purposes of this part, a

principal executive officer of a Federal agency includes

the chief executive officer having responsibility for the

overall operations of a principal geographic unit of the

agency (e.g., a Regional Administrator of EPA); or

(4) For affected facilities:

(i) The designated representative in so far as

actions, standards, requirements, or prohibitions under

Title IV of the Clean Air Act or the regulations

promulgated thereunder are concerned; or

(ii) The designated representative for any other

purposes under part 60.

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* * * * *

Small, remote incinerator means an incinerator that

combusts solid waste (as that term is defined by the

Administrator in 40 CFR 241) and combusts 3 tons per day or

less solid waste and is more than 25 miles driving distance

to the nearest municipal solid waste landfill.

Soil treatment unit means a unit that thermally treats

petroleum–contaminated soils for the sole purpose of site

remediation. A soil treatment unit may be direct-fired or

indirect fired. A soil treatment unit is not an



Solid waste means the term solid waste as defined in

40 CFR 241.2.

Solid waste incineration unit means a distinct

operating unit of any facility which combusts any solid

waste (as that term is defined by the Administrator in 40

CFR part 241) material from commercial or industrial

establishments or the general public (including single and

multiple residences, hotels and motels). Such term does not

include incinerators or other units required to have a

permit under section 3005 of the Solid Waste Disposal Act.

The term "solid waste incineration unit" does not include

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(1) Materials recovery facilities (including primary

or secondary smelters) which combust waste for the primary

purpose of recovering metals;

(2) Qualifying small power production facilities, as

defined in section 3(17)(C) of the Federal Power Act (16

U.S.C. 769(17)(C)), or qualifying cogeneration facilities,

as defined in section 3(18)(B) of the Federal Power Act (16

U.S.C. 796(18)(B)), which burn homogeneous waste (such as

units which burn tires or used oil, but not including

refuse-derived fuel) for the production of electric energy

or in the case of qualifying cogeneration facilities which

burn homogeneous waste for the production of electric

energy and steam or forms of useful energy (such as heat)

which are used for industrial, commercial, heating or

cooling purposes; or

(3) Air curtain incinerators provided that such

incinerators only burn wood wastes, yard wastes and clean

lumber and that such air curtain incinerators comply with

opacity limitations to be established by the Administrator

by rule.

Space heater means a unit that meets the requirements

of 40 CFR 279.23. A space heater is not an incinerator, a

waste-burning kiln, an energy recovery unit or a small,

remote incinerator under this subpart.

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* * * * *

Waste-burning kiln means a kiln that is heated, in

whole or in part, by combusting solid waste (as the term is

defined by the Administrator in 40 CFR part 241). Secondary

materials used in Portland cement kilns shall not be deemed

to be combusted unless they are introduced into the flame

zone in the hot end of the kiln or mixed with the

precalciner fuel.

Wet scrubber means an add-on air pollution control

device that uses an aqueous or alkaline scrubbing liquor to

collect particulate matter (including nonvaporous metals

and condensed organics) and/or to absorb and neutralize

acid gases.

* * * * *

44. Table 1 to subpart DDDD is amended by revising

footnotes a and b to read as follows:

Table 1 to Subpart DDDD of Part 60—Model Rule—Increments of Progress and Compliance Schedules

* * * * *

a Site-specific schedules can be used at the discretion of the state.

b The date can be no later than 3 years after the effective date of state plan approval or December 1, 2005 for CISWI units that commenced construction on or before November 30, 1999. The date can be no later than 3 years after the effective date of approval of a revised state plan or

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February 7, 2018, for CISWI units that commenced construction on or before June 4, 2010.

45. Table 2 to subpart DDDD of part 60 is amended by:


b. Revising the entry for “Hydrogen Chloride”.

c. Revising the entry for “Opacity”.

d. Revising the entry for “Oxides of nitrogen”.

e. Revising footnotes a and b.


Table 2 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply To Incinerators Before [Date to be

specified in state plan]b.

For the air

pollutant


limitationa Using this averaging

time


* * * * * * *

Hydrogen chloride



Performance test (Method 26 or 26A at 40 CFR part 60, appendix A-8)

* * * * * * *

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For the air

pollutant


limitationa Using this averaging

time


Opacity 10 percent Three 1-hour blocks consisting of ten 6-minute average opacity values


Oxides of nitrogen



Performance test (Methods 7or 7E at 40 CFR part 60, appendix A-4).

* * * * * * *

a All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions.

b Applies only to incinerators subject to the CISWI standards through a state plan or the Federal plan prior to June 4, 2010. The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018.

* * * * *

46. Table 6 to subpart DDDD of part 60 is amended by:

a. Revising the entry for “Carbon monoxide”.

b. Revising the entry for “Lead”.

c. Revising the entry for “Mercury”.

d. Revising the entry for “Oxides of nitrogen”.

e. Revising the entry for “Sulfur dioxide”.

f. Revising footnote a.

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g. Redesignating footnote c as footnote d.

h. Adding footnote c.


Table 6 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply To Incinerators On and After [Date

to be specified in state plan]a

For the air

pollutant


limitationbUsing this averaging

time


* * * * * * *

Carbon monoxide




* * * * * * *


cubic meterc




3-run average (For Method 29 an ASTM D6784-02 (Reapproved

2008)d, collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A)

Performance test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784-02 (Reapproved

2008)d.

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For the air

pollutant


limitationbUsing this averaging

time


Oxides of nitrogen




* * * * * * *

Sulfur dioxide




* * * * * * *

a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018.

* * * * *


d Incorporated by reference, see §60.17.

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47. Table 7 to subpart DDDD of part 60 is revised to

read as follows:

Table 7 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply To Energy Recovery Units After May

20, 2011[Date to be specified in state plan]a

You must meet this

emission limitationb



time


Biomass - 0.0014 milligrams per dry standard cubic

meterc






Carbon monoxide





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You must meet this




time


Biomass -0.52 nanograms per dry standard cubic

meterc

Dioxins/ furans (total mass basis)


Coal - 5.1 nanograms per dry standard cubic

meterc

3-run average (collect a minimum volume of 4 dry standard cubic meter)


Biomass - 0.12 nanograms per dry standard cubic meter

Dioxins/ furans (toxic equivalency basis)


Coal - 0.075 nanograms per dry standard cubic

meterc



Hydrogen chloride


Biomass - 0.20 parts per million dry volume

3-run average (for Method 26, collect

Performance test (Method 26 or 26A at 40 CFR part

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You must meet this




time


Coal –


a minimum of 120 liters; for Method 26A, collect a minimum volume of 1 dry standard cubic meter)

60, appendix A-8).

Biomass - 0.014 milligrams per dry standard cubic

meterc


Coal - 0.14 milligrams per dry standard cubic

meterc





3-run average (For Method 29 and ASTM D6784-02 (Reapproved

Performance test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM

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You must meet this




time



2008)d, collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A)

D6784-02 (Reapproved

2008)d.


Oxides of nitrogen





Particulate matter

filterable


Biomass - 11 milligrams per dry standard cubic meter

3-run average (collect a minimum volume of 1 dry

Performance test (Method 5 or 29 at 40 CFR part 60, appendix A-3 or appendix A-

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You must meet this




time


Coal - 160 milligrams per dry standard cubic meter

standard cubic meter)

8) if the unit has an annual average heat input rate less than or equal to 250 MMBtu/hr; or PM CPMS (as specified in §60.2710(x)) if the unit has an annual average heat input rate greater than 250 MMBtu/hr.

Biomass – 7.3 parts per million dry volume

Sulfur dioxide





Fugitive ash

Visible emissions for no more than 5 percent of the hourly observation period

Visible emissions for no more than 5 percent of the hourly observation period


Visible emission test (Method 22 at 40 CFR part 60, appendix A-7).

a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or [February 7, 2018.

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b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit.

c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. For all other pollutants that do not contain a footnote “c”, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing, with the exception of annual performance tests to certify a CEMS or PM CPMS.

d Incorporated by reference, see § 60.17.


read as follows:

Table 8 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply to Waste-burning Kilns After [Date

to be specified in state plan]a



limitationb


time


this method

Cadmium 0.0014 milligrams per dry standard

cubic meterc



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limitationb


time


this method

Carbon monoxide

110 (long kilns) / 790 (preheater / precalciner) parts per million dry volume





meterc




0.075 nanograms per dry standard

cubic meterc



Hydrogen chloride

3.0 parts per million dry

volumec

3-run average (collect a minimum volume of 1 dry standard cubic meter) or 30-day rolling average if HCl CEMS is being used

Performance test (Method 321 at 40 CFR part 63, appendix A of this part) or HCl CEMS if a wet scrubber is not used.


cubic meterc



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limitationb


time


this method



Mercury CEMS or sorbent trap monitoring system (performance specification 12A or 12B, respectively, of appendix B of this part.)

Oxides of nitrogen




Particulate matter filterable

4.6 milligrams per dry standard cubic meter


PM CPMS (as specified in §60.2710(x))


3-run average (for Method 6, collect a minimum of 20 liters; for Method 6C, 1 hour minimum sample time per run)



b All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit.

c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant

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for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. For all other pollutants that do not contain a footnote “c”, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing, with the exception of annual performance tests to certify a CEMS or PM CPMS.


read as follows:

Table 9 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply to Small, Remote Incinerators After

[Date to be Specified in state plan]a



limitationb


time


method




Carbon monoxide





4,400 nanograms per dry standard cubic

meterb



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limitationb


time


method


180 nanograms per dry

standard cubic meterb 3-run average (collect a minimum volume of 1 dry standard cubic meters)


Fugitive ash Visible emissions for no more than 5 percent of the hourly observation period


Visible emissions test (Method 22 at 40 CFR part 60, appendix A-7).

Hydrogen chloride







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limitationb


time


method


3-run average (For Method 29 and ASTM D6784-02 (Reapproved

2008)c, collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A)

Performance test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784-02 (Reapproved

2008)c.

Oxides of nitrogen







Performance test (Method 5 or 29 at 40 CFR part 60, appendix A-3 or appendix A-8).

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limitationb


time


method


3-run average (for Method 6, collect a minimum of 20 liters per run; for Method 6C, 1 hour minimum sample time per run)



b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit.

c Incorporated by reference, see § 60.17.

PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN

COMBUSTION UNITS

50. The authority citation for part 241 continues to

read as follows:

Authority: 42 U.S.C. 6903, 6912, 7429.

SUBPART A—General


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a. Revising the definition of “Clean cellulosic biomass”;

b. Revising the definition of “Contaminants”;

c. Revising the definition of “Established tire

collection programs”; and

d. Revising the definition of “Resinated wood”.


§241.2 Definitions.

* * * * *

Clean cellulosic biomass means those residuals that

are akin to traditional cellulosic biomass, including, but

not limited to: agricultural and forest-derived biomass

(e.g., green wood, forest thinnings, clean and

unadulterated bark, sawdust, trim, tree harvesting

residuals from logging and sawmill materials, hogged fuel,

wood pellets, untreated wood pallets); urban wood (e.g.,

tree trimmings, stumps, and related forest-derived biomass

from urban settings); corn stover and other biomass crops

used specifically for the production of cellulosic biofuels

(e.g., energy cane, other fast growing grasses, byproducts

of ethanol natural fermentation processes); bagasse and

other crop residues (e.g., peanut shells, vines, orchard

trees, hulls, seeds, spent grains, cotton byproducts, corn

and peanut production residues, rice milling and grain

elevator operation residues); wood collected from forest

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fire clearance activities, trees and clean wood found in

disaster debris, clean biomass from land clearing

operations, and clean construction and demolition wood.

These fuels are not secondary materials or solid wastes

unless discarded. Clean biomass is biomass that does not

contain contaminants at concentrations not normally

associated with virgin biomass materials.

* * * * *

Contaminants means all pollutants listed in Clean Air

Act sections 112(b) or 129(a)(4), with the following three

modifications:

(1) The definition includes the elements chlorine,

fluorine, nitrogen, and sulfur in cases where non-hazardous

secondary materials are burned as a fuel and combustion

will result in the formation of hydrogen chloride (HCl),

hydrogen fluoride (HF), nitrogen oxides (NOx), or sulfur

dioxide (SO2). Chlorine, fluorine, nitrogen, and sulfur are

not included in the definition in cases where non-hazardous

secondary materials are used as an ingredient and not as a

fuel.

(2) The definition does not include the following

pollutants that are either unlikely to be found in non-

hazardous secondary materials and products made from such

materials or are adequately measured by other parts of this

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definition: hydrogen chloride (HCl), chlorine gas (Cl2),

hydrogen fluoride (HF), nitrogen oxides (NOx), sulfur

dioxide (SO2), fine mineral fibers, particulate matter,

coke oven emissions, opacity, diazomethane, white

phosphorus, and titanium tetrachloride.

(3) The definition does not include m-cresol, o-

cresol, p-cresol, m-xylene, o-xylene, and p-xylene as

individual contaminants distinct from the grouped

pollutants total cresols and total xylenes.

* * * * *

Established tire collection program means a

comprehensive collection system or contractual arrangement

that ensures scrap tires are not discarded and are handled

as valuable commodities through arrival at the combustion

facility. This can include tires that were not abandoned

and were received from the general public at collection

program events.

* * * * *

Resinated wood means wood products (containing binders

and adhesives) produced by primary and secondary wood

products manufacturing. Resinated wood includes residues

from the manufacture and use of resinated wood, including

materials such as board trim, sander dust, panel trim, and

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off-specification resinated wood products that do not meet

a manufacturing quality or standard.

* * * * *

SUBPART B—Identification of Non-Hazardous Secondary

Materials that are Solid Wastes When Used as Fuels or

Ingredients in Combustion Units

52. Amend 241.3 as follows:

a. Revise paragraph (a) and (b).

b. Revise paragraph (c) introductory text, and

paragraphs (c)(1) introductory text, (c)(2)

introductory text, and (c)(2)(ii), (iii), and

(iv).

c. Revise paragraph (d)(1)(iii).


§ 241.3 Standards and procedures for identification of

non-hazardous secondary materials that are solid wastes

when used as fuels or ingredients in combustion units.

(a) Except as provided in paragraph (b) of this

section or in § 241.4(a) of this subpart, non-hazardous

secondary materials that are combusted are solid wastes,

unless a petition is submitted to, and a determination

granted by, the EPA pursuant to paragraph (c) of this

section. The criteria to be addressed in the petition, as

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well as the process for making the non-waste determination,

are specified in paragraph (c) of this section.

(b) The following non-hazardous secondary materials

are not solid wastes when combusted:

(1) Non-hazardous secondary materials used as a fuel

in a combustion unit that remain within the control of the

generator and that meet the legitimacy criteria specified

in paragraph (d)(1) of this section.

(2) The following non-hazardous secondary materials

that have not been discarded and meet the legitimacy

criteria specified in paragraph (d)(1) of this section when

used in a combustion unit (by the generator or outside the

control of the generator):

(i) [Reserved]

(ii) [Reserved]

(3) Non-hazardous secondary materials used as an

ingredient in a combustion unit that meet the legitimacy

criteria specified in paragraph (d)(2) of this section.

(4) Fuel or ingredient products that are used in a

combustion unit, and are produced from the processing of

discarded non-hazardous secondary materials and that meet

the legitimacy criteria specified in paragraph (d)(1) of

this section, with respect to fuels, and paragraph (d)(2)

of this section, with respect to ingredients. The

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legitimacy criteria apply after the non-hazardous secondary

material is processed to produce a fuel or ingredient

product. Until the discarded non-hazardous secondary

material is processed to produce a non-waste fuel or

ingredient, the discarded non-hazardous secondary material

is considered a solid waste and would be subject to all

appropriate federal, state, and local requirements.

(c) The Regional Administrator may grant a non-waste

determination that a non-hazardous secondary material that

is used as a fuel, which is not managed within the control

of the generator, is not discarded and is not a solid waste

when combusted. This responsibility may be retained by the

Assistant Administrator for the Office of Solid Waste and

Emergency Response if combustors are located in multiple

EPA Regions and the petitioner requests that the Assistant

Administrator process the non-waste determination petition.

If multiple combustion units are located in one EPA Region,

the application must be submitted to the Regional

Administrator for that Region. The criteria and process for

making such non-waste determinations includes the

following:

(1) Submittal of an application to the Regional

Administrator for the EPA Region where the facility or

facilities are located or the Assistant Administrator for

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the Office of Solid Waste and Emergency Response for a

determination that the non-hazardous secondary material,

even though it has been transferred to a third party, has

not been discarded and is indistinguishable in all relevant

aspects from a fuel product. The determination will be

based on whether the non-hazardous secondary material that

has been discarded is a legitimate fuel as specified in

paragraph (d)(1) of this section and on the following

criteria:

* * * * *

(2) The Regional Administrator or Assistant

Administrator for the Office of Solid Waste and Emergency

Response will evaluate the application pursuant to the

following procedures:

* * * * *

(ii) The Regional Administrator or Assistant


Response will evaluate the application and issue a draft

notice tentatively granting or denying the application.

Notification of this tentative decision will be published

in a newspaper advertisement or radio broadcast in the

locality where the facility combusting the non-hazardous

secondary material is located, and be made available on the

EPA’s web site.

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(iii) The Regional Administrator or the Assistant


Response will accept public comments on the tentative

decision for 30 days, and may also hold a public hearing

upon request or at his discretion. The Regional

Administrator or the Assistant Administrator for the Office

of Solid Waste and Emergency Response will issue a final

decision after receipt of comments and after a hearing (if

any). If a determination is made that the non-hazardous

secondary material is a non-waste fuel, it will be

retroactive and apply on the date the petition was

submitted.

(iv) If a change occurs that affects how a non-

hazardous secondary material meets the relevant criteria

contained in this paragraph after a formal non-waste

determination has been granted, the applicant must re-apply

to the Regional Administrator or the Assistant


Response for a formal determination that the non-hazardous

secondary material continues to meet the relevant criteria

and, thus, is not a solid waste.

(d) * * *

(1) * * *

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(iii) The non-hazardous secondary material must

contain contaminants or groups of contaminants at levels

comparable in concentration to or lower than those in

traditional fuel(s) which the combustion unit is designed

to burn. In determining which traditional fuel(s) a unit is

designed to burn, persons may choose a traditional fuel

that can be or is burned in the particular type of boiler,

whether or not the combustion unit is permitted to burn

that traditional fuel. In comparing contaminants between

traditional fuel(s) and a non-hazardous secondary material,

persons can use data for traditional fuel contaminant

levels compiled from national surveys, as well as

contaminant level data from the specific traditional fuel

being replaced. To account for natural variability in

contaminant levels, persons can use the full range of

traditional fuel contaminant levels, provided such

comparisons also consider variability in non-hazardous

secondary material contaminant levels. Such comparisons are

to be based on a direct comparison of the contaminant

levels in both the non-hazardous secondary material and

traditional fuel(s) prior to combustion.

* * * * *

55. Add § 241.4 to read as follows:

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§ 241.4 Non-Waste Determinations for Specific Non-

Hazardous Secondary Materials When Used as a Fuel.

(a) The following non-hazardous secondary materials

are not solid wastes when used as a fuel in a combustion

unit:

(1) Scrap tires that are not discarded and are managed

under the oversight of established tire collection

programs, including tires removed from vehicles and off-

specification tires.

(2) Resinated wood.

(3) Coal refuse that has been recovered from legacy

piles and processed in the same manner as currently-

generated coal refuse.

(4) Dewatered pulp and paper sludges that are not

discarded and are generated and burned on-site by pulp and

paper mills that burn a significant portion of such

materials where such dewatered residuals are managed in a

manner that preserves the meaningful heating value of the

materials.

(b) Any person may submit a rulemaking petition to the

Administrator to identify additional non-hazardous

secondary materials to be listed in paragraph (a) of this

section. Contents and procedures for the submittal of the

petitions include the following:

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(1) Each petition must be submitted to the

Administrator by certified mail and must include:

(i) The petitioner's name and address;

(ii) A statement of the petitioner's interest in the

proposed action;

(iii) A description of the proposed action, including

(where appropriate) suggested regulatory language; and

(iv) A statement of the need and justification for the

proposed action, including any supporting tests, studies,

or other information. Where the non-hazardous secondary

material does not meet the legitimacy criteria, the

applicant must explain why such non-hazardous secondary

material should be considered a non-waste fuel, balancing

the legitimacy criteria with other relevant factors.

(2) The Administrator will make a tentative decision

to grant or deny a petition and will publish notice of such

tentative decision, either in the form of an advanced

notice of proposed rulemaking, a proposed rule, or a

tentative determination to deny the petition, in the

Federal Register for written public comment.

(3) Upon the written request of any interested person,

the Administrator may, at its discretion, hold an informal

public hearing to consider oral comments on the tentative

decision. A person requesting a hearing must state the

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issues to be raised and explain why written comments would

not suffice to communicate the person's views. The

Administrator may in any case decide on its own motion to

hold an informal public hearing.

(4) After evaluating all public comments the

Administrator will make a final decision by publishing in

the Federal Register a regulatory amendment or a denial of

the petition.

(5) The Administrator will grant or deny a petition

based on the weight of evidence showing the following:

(i) The non-hazardous secondary material has not been

discarded in the first instance and is legitimately used as

a fuel in a combustion unit, or if discarded, has been

sufficiently processed into a material that is legitimately

used as a fuel.

(ii) Where any one of the legitimacy criteria in §

241.3(d)(1) is not met, that the use of the non-hazardous

secondary material is integrally tied to the industrial

production process, that the non-hazardous secondary

material is functionally the same as the comparable

traditional fuel, or other relevant factors as appropriate.

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[FR Doc. 2012-31632 Filed 02/06/2013 at 8:45 am;

Publication Date: 02/07/2013]

environmental protection agency 40 cfr …page 2 of 519 codified by the non-hazardous secondary...

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